' IJAZ-UL-HASSAN, J.--- This judgment will dispose of Criminal Appeal No,91 of 2000 assailing the judgment, dated 16-2-2000 rendered by learned Judge, Special Court, Nowshera in Case No,26 of 1997, whereby appellant Mehmood Khan was convicted under section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life and fine of Rs,20,000 or in default thereof to undergo further R.I. For two years. The motor car bearing No,2697- LOV, found to have been used in the commission of the crime, was also confiscated to the State. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Shortly narrated, the prosecution case is, that pursuant to an authentic secret information furnished by Mukhbir to S.-I. Arifullah P.W. Police Post Khairabad on 29-7-1997 that huge quantity of narcotics is likely to be smuggled to Punjab, P.W. Arifullah constituted a raiding party comprising Faridullah, Amir Talab and Ilyas, F.Cs. The police party conducted Nakabandi near Toll Tax Khairabad Bridge. In the meanwhile, motor car bearing No,LOV-2697 was found coming from Peshawar side. The party signalled the said vehicle to stop but the driver of the vehicle instead of haulting the vehicle accelerated the same and attempted to escape. His attempt was foild and he was arrested. The search of the vehicle led to the recovery of plastic bag containing Charas and opium weighing 20 kilograms and 4 kilograms respectively from the Dikki of the vehicle. On inquiry, driver of the vehicle disclosed his name as Mehmood Khan son of Umar Khan, resident of Langarkhel, Sarband, Peshawar. Four grams of Charas and opium (each) were separated from the recovered material and sealed in a parcel for sending the same to the office of the Chemical Examiner, Peshawar for opinion and report. The remaining contraband was packed and sealed into a separate parcel in the presence of Faridullah and Amir Talab L.H.Cs. As marginal witnesses. The appellant was formally arrested and a case against him was registered at Police Station Akora Khattak, District Nowshera vide F.I.R. No,393, dated 29-7-1997.Under Articles 3/4 of the Prohibition (Enforcement otlA Hadd) Order, 1979 read with sections 6,' 7 and 9 of the Control ofl Narcotic Substances Act, 1997.
3. In order to substantiate the charge, prosecution produced five witnesses and abandoned F.C.
Amir Talab as unnecessary.
4. Magistrate Mazhar Sajjad (P.W.1) stated that on 1-8-1997 he recorded confessional statement of Mehmood Khan appellant. The handcuffs of the appellant were removed and he was given one hour to ponder over the matter. After observing all the legal formalities he recorded confessional statement (Exh.P.F.) of the appellant and issued certificate (Exh.P.F./2) in this respect. It is in his cross-examination that the appellant had stated before him that he was to be paid Rs,2,000 for taking the car from Khyber Agency (Sarband) to Haripur Chowk and that he did not know that there was Charas and opium in the body of the car.
5. Muhammad Sharif (P.W.2) who was then S.H.O. Police Station Akora Khattak, on completion of investigation submitted complete challan against the accused-appellant.
6. S.H.O. Arifullah (P.W.3) the then Incharge Police' Post Khair Abad stated that on 29-7-1997 on receipt of spy information he constituted a police party, conducted Nakabandi at Khair Abad Bridge and apprehended the accused-appellant driving motor car bearing No,LOV-2697 white in colour (Toyota Corolla). He gave a signal to the driver to stop the car but he accelerated the speed in order to escape. However, the car was intercepted and Charas and opium weighing 20 kilograms and 4 kilograms respectively were recovered from the Dikki of the car. Four grams (each) were separated from the contraband for the purpose of sending the same to the laboratory for opinion and report. He drafted Murasila (Exh.P.A./1) at the spot and dispatched the same to Police Station Akora Khattak for registration of the case. He produced the accused-appellant for recording his confessional statement. After completion of investigation he handed over the case file to the S.H.O. For onward submission. It is in his cross-examination that 10/15 persons from the general public were available at the spot and he asked them to associate with the search and recovery proceedings but they refused to do so. ' He admitted that the accused was produced before the Magistrate after remaining in police custody for about 72 hours. However, he denied the suggestion that the confessional statement of the accused-appellant was the result of duress and inducement.
7. L.H.C. Faridullah (P.W.4) stated that he is marginal witness to recovery memo. (Exh.P.C.) vide which the Investigating Officer took into his possession 20 kilograms of Charas and 4 kilograms of opium. It is in his cross-examination that the Investigating Officer first drafted the Murasila and then prepared the recovery memo. And that no person from the public was present at the time of preparation of recovery memo.
8. S.-I. Ihsanullah (P.W.5) stated that on receipt of Murasila he registered the present case vide F.I.R.
(Exh.P.A.) against the accused-appellant.
9. The accused-appellant in his statement recorded under section 342, Cr.P.C. Admitted that he is owner of motor car No,LOV2697; that he was driving the same at the relevant time and that the car was intercepted by the raiding party on 29-7-1997 near Khair Abad Bridge. However, he denied the recovery and maintained that in fact the recovery was effected from one Haji Muhammad Rehman hailing from tribal territory, but after making arrangements with the real culprit, the police let him free and foisted the narcotics on the accused-appellant. Regarding confessional statement he stated that the same was obtained as a result of inducement and torture. He also stated that entire statement was dictated to him by the Investigating Officer himself with the promise that if the same was made before the Court, he (the appellant) would face easy situation. The accused- appellant opted not to record statement on oath within the purview of section 340(2), Cr.P.C. Nor produced any defence evidence.
10. Mr. Fiaz Khan, Advocate appearing on behalf of the accused-appellant contended with force that the judgment of the trial Court is not sustainable as it is against the law, facts and circumstances. He reiterated that in fact the huge quantity of Charas and opium was recovered from one Haji Muhammad Rehman hailing from tribal territory but the local police after receiving illegal gratification from him, planted the same on the accused-appellant and this fact was dully brought to the notice of the Magistrate, who recorded confessional statement of the accused- appellant but he took no notice of it. The learned counsel also argued that despite the accused- appellant having been arrested at a thickly-populated public place no witness from the public was associated with the recovery allegedly effected from the accused-appellant and, thus, the mandatory requirements of section 103, Cr.P.C. Were flagrantly violated in this case. The learned counsel further submitted that the Investigating Officer namely S.H.O. Arifullah having combined in himself the duties of complainant, Investigating Officer and witness, has seriously prejudiced the case of the accused-appellant. It was also urged by the learned counsel that if the allegation levelled against an accused person attracts the provisions of section 9 of the Control of Narcotic Substances Act, 1997 as well as the provisions of Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 then in such a case of two penal provisions attracted to the same allegation against an accused person that penal provision is to be applied which carries a lesser punishment or attracts lesser rigours of the law, i,e, Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979. In the last leg of arguments, the learned counsel contended that only a small quantity of the substance allegedly recovered from the accused-appellant had been sent by the police for Chemical analysis and it is only that quality which can be considered against the petitioner and not the remaining substance which was never sent for chemical analysis for opinion and report.
Concluding the arguments the learned counsel submitted that for giving benefit of doubt to an accused person, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates a reasonable doubt in prudent mind about the guilt of the accused then accused will be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. The learned counsel emphasized that prosecution having failed to prove its case, the accused-appellant is entitled for a finding of acquittal. To substantiate the pleas, he placed reliance on Tariq Parvez v. The State PLD 1995 SC 1345, Ghaniur Rehman v. The State 1996 PCr.LJ 347, Muhammad Afzal v. The State 1998 PCr.LJ 955, Naveed Ahmad Khan v. The State 1999 PCr.LJ 63, Imran Saeed v. The State 2001 PCr.LJ 1365, Ijaz Khan and others v. State and another 2001 YLR 2039, Nasrullah v. The State PLD 2001 Pesh. 152, Mst. Nasira Bibi v. The State PLD 1998 Lah. 146 and Khalil Ahmad v. The State PLJ 2001 Cr.C. (Lahore) 1312.
11. Syed Asif Ali Shah, Advocate representing the State defended the impugned judgment and order and submitted that keeping in view the facts and circumstances of the case, the learned trial Judge had justifiable reasons to ignore minor discrepancies in the prosecution evidence and pass an order of conviction. He maintained that the Courts cannot except in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case and thus, the Courts approach should be dynamic and they should overlook technicalities in the larger interest of the country and the public at large. The Court is to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded.
Concluding the arguments the learned counsel urged that no case of misreading or non-reading of evidence has been made out and as such the accused-appellant has been appropriately dealt with. To substantiate the contentions he relied on Munawar Hussain and 2 others v. The State 1993 SCMR 785, Rasool Bakhsh v. The State 2000 PCr.LJ 1975, Hazrat Ali Khan v. The State 1989 MLD 3246 and Muhammad Farooq Afridi v. The Sate 2002 PCr.LJ 196.
12. We have heard at length the arguments and submissions of learned counsel for the parties, We have also adverted to the material available on record and the case-law cited at the Bar.
13. There is no denial of the fact that on receipt of a spy information on 29-7-1997 regarding commission of the offence, a police-party headed by S.H.O. Arifullah P.W. Was constituted which arranged Nakabandi near Toll Tax Khair Abad Bridge. In the meanwhile, motor car No,LOV2697 white in colour, Toyota Corolla was seen coming. The police party gave a signal to the driver of the car to stop but he accelerated the speed of the car. However, the car was intercepted and on inquiry, driver of the car introduced himself as Mehmood Khan son of Umar Khan (35) resident of Sarband Bara, Peshawar. Upon search Charas and opium weighing 20 kilograms and 4 kilograms respectively were recovered from the Dikki of the car. The accused appellant in his statement recorded under section 342, Cr.P.C. Does not deny the ownership of car and its interception near Khair Abad Bridge but per his version the contraband belonged to one Haji Muhammad Rehman hailing from tribal territory but the same was foisted upon him. The stance taken by the accused- appellant is not convincing. There is nothing on record in support of the accusation. The learned counsel has remained unable to show any background of bitterness or between the accused appellant and the local police so as to prompt the latter to falsely implicate the accused-appellant in a case of this nature.
14. Adverting to the other contention raised by learned counsel for the accused-appellant regarding non-compliance of the mandatory provisions of section 103, Cr.P.C. We find that on the one hand a valid explanation has been furnished by the Investigating Officer for non-associating two public witnesses from the spot whereas on the other section 25 of the Control of Narcotic Substances Act, 1997 clearly excludes the application of section 103, Cr.P.C. To the cases under the aforesaid Act. If an authority is needed on the point reference can be made to Fida Gul v. The State 2001 SCMR 36 and Shahid Baloch v. The State 1998 PCr.LJ 628.
15. The argument of the learned counsel for the accused-appellant regarding regarding various hats simultaneously worn by the Investigating Officer has also failed to impress us. There is no legal prohibition for police official to be a complainant, a witness to the commission of offence and also to be an Investigating Officer, so far as, it does not, in any manner, prejudice the accused person. In the present case no such prejudice seems to have been caused to the accused-appellant.
16. Regarding the objection of learned counsel for the accused-appellant that if the allegation levelled against an accused person attracts the provisions of section 9 of the Control of Narcotic Substances Act, 1997 as well as the provisions of Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 then, in such a case of two penal provisions attracted to the same allegation against an accused person that penal provision is to be applied which carried a lesser punishment or attracts lesser rigour of the law, the objection is not tenable, in view of the provisions of section 76 of the aforesaid Act. This provision provides for giving an overriding effect to the provision of the Control of Narcotic Substances Act, 1997 over anything contained in any other law for the time being in force. The provision of section 74 of the said Act may also be advantageously referred to in this context.
17. So far as the last submission of learned counsel for the accused-appellant that only a small quantity of the sultanate allegedly recovered from the accused-appellant had been sent for chemical analysis and it is only that quantity which can be considered against the accused- appellant and not the remaining substance which was never sent for chemical analysis, is equally without force. The provisions of sections 35 and 36 of the Control of Narcotic Substances Act, 1997 do not specify any particular quantity of the recovered substance to be sent as a sample for chemical analysis. Even otherwise section 29 of the Act requires a presumption to be raised in such a case regarding the allegation levelled against an accused person to be true in its entirety and it is for the accused person to rebut such an allegation. Fida Jan v. The State 2001 SCMR 36.
18. The accused-appellant was arrested on 29-7-1997 and on 1-8-1997 his confessional statement was recorded by P.W.1. It is vehemently contended by learned counsel for the accused-appellant that confession should have been excluded out of consideration firstly for the reason that it was recorded three days after police custody of the accused-appellant and secondly it was the result of coercion, duress, torture, promise and inducement. In support of his contentions, the learned counsel placed reliance on Munir Mushtaq v. Collector of Customs PLD 1999 SC 1111, Syed Ali Shah alias Shahji v. The State 1993 PCr.LJ 1118 and Mst. Darya Khatoon v. The State 1996 PCr.LJ 1477. He also contended that the confession did not satisfy the accepted principles since principles since the accused-appellant was given no time for reflection and his handcuffs were not removed. He relied on Muhammad Riaz v. The State PLD 1994 Pesh.
102.
Delay in recording confessional statement, per se, is no ground to discard it unless it is proved or emerges from the circumstances that it I was obtained by coercion, threat, pressure etc. Indeed, the learned Magistrate after observing formalities recorded his confession and certified that it was true and voluntary. We are satisfied that the fear of the accused-appellant was totally removed from the mind of the accused-appellant and the confessional statement made by him was free from I extraneous influence such as threat, promise or inducement. The confessional statement is voluntary and true and does not suffer from any defect of form or substance. No doubt the confession has been retracted by the accused-appellant but mere retraction is not enough to make it involuntary or diminish its intrinsic value. Muhammad Ismail and another v. The State 1995 SCMR 1615, Mir Azam v. The State 1994 Peshawar 155, Mst. Nasim Akhtar v. The State 1999 SCMR 1744, Chaudhry Muhammad Yaqoob v. The State 1992 SCMR 1983 and Ahmad Hassan v. The State 2001 SCMR 505.
19. Learned counsel for the accused-appellant also pleaded that the vehicle in question was not produced during the trial which clearly tend to suggest that the prosecution had no leg to stand upon. The submission is without substance. The mere fact that the vehicle has not been produced before the Court is not fatal to the prosecution story. The same having been found used in the commission of the crime already stand confiscated to the State.
20. Concluding the arguments learned counsel for the accused-appellant maintained that the accused-appellant is the sole bread earner of his family and keeping in view the antecedents of the accused-appellant, the sentence awarded to him may be reduced. The submission of the learned counsel is not tenable. The accused-appellant is involved in a case of heinous nature and he deserves no leniency. The Control of Narcotic Substances Act, 1997 is not an ordinary law as held in Nazar Hussain v. The State 2002 PCr.LJ 440. It was pointed out that "The menance that it purports to curb is not common place and the criminal who indulges in it are not of the normal type. The mischief sought to be suppressed by this law is not just a crime against a human being but a crime against the humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative".
20. For the reasons mentioned above, in the absence of any cogent reason, the prosecution case has been proved against the accused beyond any reasonable doubt. The conviction and sentence passed by learned trial Court is maintained and this appeal is dismissed.