IJAZ AHMAD CHAUDHRY, J.---Through this criminal appeal Khalid Saeed Butt appellant has challenged the judgment, dated 5th of June, 1998 passed by learned Judge Special Court, Lahore, by which he has convicted the appellant, under section 9(c) of the Control of Narcotic Substances Ordinance, 1996 and sentenced him to imprisonment for life and a fine of Rs, one Million and in case of default of payment he has been directed to further undergo R.I. for six years and three months, as being 1/4 of the term of the imprisonment. However, Babar 'accused was acquitted.
2. The brief facts of the prosecution case are that on 5th of September, 1996 a secret information was received by Senior Officer of A.N.F. that Chemical used in the preparation of heroin was delivering in the Chowk Yad Gar Pakistan.' On this information a raiding party was constituted comprising Hassan Ejaz, Deputy Director, Muhammad Ilyas Malik, Assistant Director, Aziz Ullah, Subedar, Sher Zaman, Muhammad Hussain Hawaldars, Muhammad Ahmad, Muhammad Sarwar, Muhammad Younas, Muhammad Rafique, Lance Naik, Azzar Gul, V.M. Muhammad Saleem and Noor-ul-Hayat alongwith two sniffered dogs under the direct supervision of Col. Muhammad Younas Joint Director and they reached at Chowk Yad Gar Pakistan on 5-9-1996 at midnight and started surveillance near Chowk Yad Gar. On 6-9-1996, at about 1-00 (midnight) two persons namely; Khalid Saeed Butt and Babar were coming from Badshahi Mosque. Khalid Saeed Butt was carrying a Drumi on his shoulder. The two persons started waiting standing at the corner of south western side of. the Chowk. they were overpowered by the complainant Muhammad Younas Butt P.W.-5 and the said Drumi was checked. Out of the Drumi astic chemical and hydride chemical was recovered and it was found 15 liters. From the personal search of Khalid Saeed Butt 27. grams Charas was recovered from the right pocket of his shirt and 8 grams opium was recovered from the same pocket. 10 grams astic hydride, 2 grams opium and 2 grams Charas were made into sealed parcels. P.W.5 Muhammad Younas Butt prepared the complaint Exh.P.A. and sent the same for the registration of the case on the basis of which F.I.R. Exh.PA/1 was recorded on 6-9-1996 at Police Station A.N.F. Model Town, Lahore.
3. The prosecution in order to prove the guilt of the accused/appellant produced 5 witnesses.
Akram-Ullah Bindiyal, Inspector A.N.F. appeared as P.W.1 who recorded the Formal F.I.R. Exh.PA/1.
P.W.2 Muhammad Arif, Constable was. handed over three sealed parcels for onward transmission to the office of Chemical Examiner, Lahore, which .he delivered intact. P.W.3 Havaldar Sher Zaman, was member of the raiding party and has supported the complainant Muhammad Younas Butt, P.W.5 about apprehension of the appellant alongwith Babar accused from the spot and recovery of the same from him.
4. After completion of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the recovery of the articles from him and claimed that the recovery has been planted upon him and he was apprehended from his house and, on question' that "Why this case against you and why the P.Ws. have deposed against you? he made the following reply, which is reproduced as under:- "I am a businessm an and deals with precious stones, one Riaz Ahmad who is relative of P.W. Sher Zaman used to bring stones for sale to me. He had borrowed Rs,40,000 from me which he did not repay to me. On my demand, he threatened that if I did not stop demanding the money from him, I will face dire consequences as one of his relative is an officer in A.N.F. This case is the result of this business dispute."
He also appeared in his defence under section 340(2) Cr. P.C. and also produced the defence evidence in the shape of statements of D.W.3 Shahid Mehmood, D.W.4 Muhammad Raza, D.W.5 Mehmood Tabassam, D.W.6, Sheikh Anwar Ali, and D.W.7 Javed Butt.
5. After hearing the arguments of learned counsel for the parties, the learned Special Judge has passed the impugned judgment, which is being assailed through this appeal.
6. Learned counsel for the appellant has contended that Muhammad Younas Butt P.W.5 is not only the complainant of this case but also the Investigating Officer of this case and this ground alone is sufficient to acquit the appellant. Reliance is placed on the judement reported in PLD 1965 Lah. 112.
It is further contended that the persons of the locality have not been joined and the recovery has been effected in violation of section 103, Cr. P.C.. hence, the recovery is liable to be disbelieved. He further contends that there are contradictions on the material points between the statements of P.W.3 and P.W.5 and the prosecution has miserably failed to prove the case against the appellant.
On the contrary, the defence evidence is based on cogent reasons and is worthy of reliance and is sufficient to hold that false case has been registered by the officers of A.N.F. for ulterior motives as the drumi containing 15 liters of astic chemical and the opium and Charas allegedly recovered from the appellant, actually had not been recovered from him but was planted upon him. It is further contended that the judgment is not based on the evidence on the record and is liable to be set aside.
7. On the other hand, learned State counsel has opposed this appeal on the record that sufficient evidence has been produced to connect the appellant with the commission of the crime and the judgment is based on the evidence on record and is liable to be upheld by this Court.
8. We have heard the arguments of lamed counsel for the parties and also perused the record with great care and caution. The prosecution in order to prove the recovery from the appellant has produced P.W.5 Muhammad Younas Butt, Inspector of A.N.F. and P.W.3 Sher Zaman, Havaldar, both of them have categorically stated that raiding party was constituted after receipt of the information and appellant and his co-accused Babar were apprehended from Chowk Yad Gar on 6th of September, 1996 at about 1-00 a.m. and the appellant was found in possession of said articles. Their statement are consistent on the material points and it cannot be said that his apprehension had not been made from the spot and the recovery has not been effected from him.
We do not fin any reason for disbelieving the statement o these witnesses who are consistent on material points. No enmity or grudge has been show for false implication of the appellant by the Officers of A.N.F. D.W.3 and D.W.7 have made their statements firsi time before the Court after long time and they had not given the date, when the appellant was apprehended. It is admitted fact that the Officers of A.N.F. raided the house of the appellant after some days of the apprehension of the appellant but no narcotics were recovered from him, and to falsely plant some material on the appellant had there been any intention that could have easily planted at the time of raid at the house of the appellant. In such circumstances, statements of the witnesses are found consistent and they are worthy of reliance for the conviction of the appellant. The contention raised by the learned counsel for the appellant is that the complainant cannot be Investigating Officer; we have consistently held that in a case of narcotics, if an accused person is apprehended, no time can be wasted to search for the Investigating Officer and it is the duty of the Officers of the Force or the police or a public man, if he sees some cognizable offence of an accused person, to apprehend the same and handover the same to the 'police, and similarly, when the appellant was apprehended by Muhammad Younas Butt P.W.5, the recovery memos. were to be prepared by him and he sent the case for .registration, hence, no illegality was committed in this case by sending the complaint for registration of F.I.R. after apprehension of the appellant from the spot and while preparing recovery memos. The authority relied upon by the learned counsel for the appellant is not applicable in criminal cases, to the extent of Investigating Officer because the purpose of investigation under section 4 of the Criminal Procedure Code is to collect the evidence and not to convict the accused person and no sanctity is attached to the opinion of Investigating Officer regarding guilt or innocence of accused persons as it is not binding on the Courts. In such circumstances the arguments of the learned counsel for the appellant is repelled. No prejudice has been caused to the appellant by the investigation conducted by P.W.5 Muhammad Younas Butt, Investigating Officer in a case in which he is also the complainant. Even otherwise, the trial Court and this Court have to see the evidence and quality of the evidence which is produced to prove the guilt of the appellant. Nobody can be acquitted on technical reasons unless prejudice was caused to him by the investigation of an incompetent officer. It has been specifically mentioned in section 156(2), Cr.P.C. that nobody can be acquitted from the charge merely on the ground that the investigation has been conducted by an officer not competent to conduct the same. As regards the contention of the learned counsel for the appellant that the recovery witnesses have not ben produced, the officers of the force are as good or bad witnesses as the public witnesses can be and search for the public witnesses at 1-00 a.m. was not possible. No illegality had thus been committed by the Investigating Officer by not joining or associating public witnesses in the recovery proceedings.
9. For what has, been discussed above, we are satisfied that the prosecution has established the case against the appellant and conviction is maintained under section 9(c) of the Control of Narcotic Substances Ordinance of 1996. However, as the "quantity of recovered Charas is less than 1 k.g. hence, the sentence of life imprisonment is harsh. As the appellant is first offender and the recovery is not more than 1 k.g. the sentence of 7 years will meet the ends of justice. Hence, the sentence of life imprisonment is reduced to 7 years' R.I. and fine of Rs, one million is also reduced to Rs,2,00,000 (Rupees two lacs only) and in default of payment thereof the appellant shall suffer one year's R.I. further. Benefit of section 382-B, Cr.P.C. is also given to the appellant. With this modification in quantum of sentence and fine, this appeal is dismissed while maintaining the impugned judgment.