IJAZ AHMAD CHAUDHARY, J.--We dispose of Criminal Appeal No, 513 of 1997 filed by Muhammad Hanif through this judgment which has been filed for setting aside of the conviction and sentence awarded to appellant under section 9 of Control of Narcotic Substances Ordinance (VI of 1995) by judgment dated 13-8-1997 whereby appellant being held guilty has been sentenced to imprisonment for life alongwith fine of Rs, one million and in case of default in payment of fine to further undergo R.I. For 5 years. However, he has been given benefit under section 382-B, Cr.P.C. In the matter of sentence. This judgment has been passed in case F.I.R. No,76 registered on 14-9-1996 at Railway Police Station, Kundian on the complaint of Said Khan, A.S.-I. P.W.4 under the abovementioned section. The complaint is Exh.PA which was sent for registration of formal F.I.R. And Muhammad Zaheer Head Constable P.W.2 recorded on the basis of the abovesaid complaint F.I.R.
Exh.PA/1.
2. The brief allegations levelled in the said F.I.R. Are that Said Khan A.S.-I. Incharge Railway Police, Mianwali was present at Railway Police Station, Mianwali alongwith Police party and was on patrol duty on 14-9-1996 at 5-20 a.m. When on the basis of secret information he apprehended Muhammad Hanif appellant for the purpose of checking who was standing in between Platform No,2-3 near Overhead Bridge and was waiting for 140-Down Train. On his personal search opium weighing 5-1/2 Kgs. Was recovered from him in the presence of the police witnesses.
3. After the registration of the case during the investigation the statements of the witnesses were recorded and sealed parcel of opium was sent to the Office of the Chemical Examiner for the purpose of analysis and after the completion of the investigation the challan was submitted in the learned trial Court.
4. Learned trial Court supplied the copies required under section 265-C, Cr.P.C. To the appellant and framed the charge under the above said offence against the appellant which was denied by him and he claimed to be tried.
5. The prosecution in order to prove the guilt of the appellant produced 7 witnesses. Muhammad Aslam P. W.1 who is running a sweetmeat stall at Railway Station, Mianwali has stated that on 14-9- 1996 Muhammad Khan Constable came to his stall and took away the scale from his, shop for the weighing of something. P.W.2 Muhammad Zahoor, Head Constable has recorded the formal F.I.R.
Exh.PA/1. Two sealed parcels of opium were received by him on 15-9-1996 from Sahib Khan, S.-I, the case property of this case and he kept them in Malkhana and then handed over one sealed parcel to Ijaz Hussain Constable for onward transmission to the Office of Chemical Examiner. P.W.3 Ijaz Hussain Constable had taken sample of the opium to the Office of the Chemical Examiner. P.W.4 Said Khan, A.S.-I. Is complainant in this case. He received secret information and searched the appellant and recovered 5500 grams opium from the bag of the appellant. 20 gram of the opium was separated out of the quantity received from appellant and a sealed parcel was prepared for the purpose of sending the same to the Office of the Chemical Examiner for analysis. From the personal search of the appellant cash of Rs,1,400, one diary, National Identity Card, Departmental card, wrist-watch and key-ring were also recovered which were taken into possession through different memos. P.W.5 Muhammad Khan is Police Constable and was posted at duty at Railway Station, Mianwali on the day of occurrence and in his presence from the personal search of the appellant 5500 gram of opium was recovered. He has also witnessed the other recoveries effected from the personal search .Of the appellant. P.W.6 Ghulam Nabi S.-I./S.H.O. Railway Police had partly investigated the case and prepared the challan for onward submission before the learned trial Court. P.W.7 Muhammad Bashir retired Police Inspector also partly investigated the case and directed the S.H.O., Railway Police, Kundian to submit the challan against him. After the close of the prosecution evidence statement of the appellant was recorded under section 342, Cr.P.0 in which he denied the factum of recovery of 5-1/2 Kgs. Of opium. Also denied the recovery of diary from him but claimed the other articles taken into possession that these articles belonged to him. On a question "why this case against you?" he replied that due to the enmity with the police. On question "have you anything else to say" he replied as under: "Said Khan, A.S.-I. Had in fact recovered one maund of contraband opium from one Misal Khan son of Ahmad Khan resident of Meeran Shah, while he was present at Mianwali Railway Station.
Subsequently, he planted 5-1/2 Kgs. Of opium upon me falsely. Muhammad Amir Khan son of Zaman, Amir Abbas Khan son of Mehr Khan, Mehr Khan son of Gul Khan, Zafar Ullah son of Umar Hayat and. Ghulam Qasim son of Sher Zaman were present at the time of said recovery." He opted to appear as D. W.1 in his defence under section 340, subsection (2), Cr.P.C. And also produced D.W.2 Ghulam Qasim in support of his defence. Learned trial Court after hearing the arguments of the learned counsel for the parties has passed the impugned judgment which is being assailed herein.
6. Learned counsel for the appellant contends that P.W.4, Said Muhammad was the complainant and he could not be the Investigating Officer at the same time hence the proceedings initiated by him and the investigation conducted by him were illegal being in violation of sections 19, 20, 21 and 22 of Control of Narcotic Substances Act, 1997. It is further contended that only the official not below the rank of S.-I. Can apprehend the accused in a narcotics case and can investigate the case. The A.S.-I. Was not empowered to investigate the case hence whole proceedings initiated by P.W.4 and the recovery were illegal and unlawful as provisions of sections 21, 22 and 26 are mandatory in nature and observance thereof would be imperative to the validity of the entry, search, seizure and arrest and noncompliance of these sections is sufficient to hold that whole action was illegal and unlawful and appeal is liable to be accepted on this score alone as the arrest of the appellant, the recovery from him and the investigation conducted by P.W.4 was in violation of the abovesaid sections. He relied upon Nasrullah v. State (PLD 2001 Peshawar 152). It is further contended that Said Muhammad P.W.4 had apprehended the appellant and planted opium with mala fide intention and with ulterior motive as during cross-examination he admitted that his father-in-law was murdered about 25/26 years ago in which Sher Khan and Muhammad Akram were challaned.
Muhammad Akram, is son-in-law of Noor .Khan who is father of Saif Ullah and sister of Muhammad Hanif accused is married to Saif Ullah aforesaid. Learned counsel contends that due to this enmity the huge quantity of opium has been planted upon him by Said Muhammad P.W.4 hence this appeal is liable to be accepted and also that he had not joined in the investigation. The public witnesses in spite of the fact that the appellant was shown to be apprehended from the Railway Station where at the time of apprehension of the appellant number of persons including the stall holders were available to the police who could easily be associated and the police has failed to give any reason for not associating the public witnesses rather only joined the police officials as the recovery witnesses who were subordinates and were serving under the supervision of P.W.4, Said Muhammad who was inimical to the appellant hence the recovery has not been proved in such circumstances from the appellant and the chance is there that it would have been planted by the said complainant/Investigating Officer in order to wreak vengeance. It is further contended that the prejudice has been caused to the appellant through investigation by Said Khan, A.S.-I. Who was inimical to the appellant. It is further contended that there are material discrepancies in the statements of the witnesses who are not worthy of credence and appeal is liable to be accepted and it is a fit case for the acquittal of the appellant from the charge as the prosecution has miserably failed to prove the guilt of the appellant.
7. On the other hand learned State Counsel has opposed this appeal on the ground that the prosecution has sufficiently proved the case for fetch enmity is being shown does not substantiate from the record which cannot be made basis for holding that the case has been lodged with ulterior motive by Said Khan P.W.4. It is contended that the prosecution has succeeded in making out a case against the appellant whose presence at the spot is not denied and even the recoveries of the other articles have been accepted by the appellant therefore in the absence of any enmity there is no chance of false implication and conviction is liable to be maintained.
8. We have heard the arguments of the learned counsel for the parties and also perused the record. The prosecution in order to prove the recovery of 5-1/2 Kgs. Of opium from the appellant has produced Said Khan A.S.-I. P.W.4 and Muhammad Khan, Constable P.W.S. The defence has tried to make out a case of false implication by Said Khan, A.S.-I. Alleging some previous enmity with him that his father-in-law was murdered about 25/26 years ago in which case Muhammad Akram was one of the accused and said Muhammad Akram is the son-in-law of Noor Khan who is the father of Saif Ullah and sister of Muhammad Hanif appellant is married to Saif Ullah aforesaid but during cross-examination P.W.4 explained that the marriage of the sister of Muhammad Hanif with Saif Ullah has taken place after the present occurrence. Said Khan, P.W. Has denied the suggestion that Muhammad Hanif had been pursuing the murder case registered about 25/26 years prior to the present occurrence on behalf of the accused side. Except this nothing has been brought on the record to show any enmity of Said Khan P.W.4 with the appellant and any ulterior motive for the false implication of the appellant in this case. We have noticed that though Said Khan P.W.4 and Muhammad Khan P. W.5 witnesses of the recovery were subjected to lengthy cross-examination but nothing favour could be gained from them. They are consistent on material points-and their statements are worthy of credence thus it cannot be said that they had any motive or grudge to falsely plant huge quantity of opium upon the appellant in order to rope him in a case in which capital punishment can be awarded. Both the witnesses are consistent that the recovery was effected from the appellant. Their statements are also corroborated by the recovery of the National Identity Card of the appellant, the currency notes, a wrist-watch and key-ring etc. Which has been admitted during his statement under section 342, Cr.P.0 by the appellant that these articles belonged to him and were recovered from him at the time of his apprehension at Railway Station. It is also not denied that the appellant was apprehended at the place of recovery and in such circumstances the other corroborative piece of evidence is the statement of P.W.1 who is a Stall Holder at Railway Station, Mianwali. He supported that Muhammad Khan, Constable had come to the stall on the day of occurrence and took away the scale from the shop for the purpose of weighing something. The registration of the F.I.R. Immediately after the receipt of the complaint by P.W.2 is also a circumstance which support that recovery was effected and the matter was reported immediately at the police station. This evidence is further supported by report of. The Chemical Examiner which shows that the sample of 20 grams of opium separated from the opium recovered from the appellant was sent to the Office of the Chemical Examiner through Ijaz Hussain, Constable P.W.3. According to the analysis of the Chemical Examiner it was found as opium. The appellant was afforded opportunity to cross-examine Ghulam Nabi, S.-I./S.H.O., Police Station Kundian and Muhammad Bashir, Inspector and both of them investigated the case before the submission of the challan but no enmity with Muhammad Khan was suggested during the cross- examination by the appellant to the Investigating Officers. In such circumstances, we are impressed by the evidence produced by the prosecution to prove the guilt of the appellant that the opium weighing 5-1/2 Kgs. Was recovered from the appellant and prosecution has stood on its own legs and has proved the case beyond any reasonable doubt. The next question is a technical objection raised by the learned counsel for the appellant inasmuch as that provisions of 20, 21 and 26 of the Control of Narcotic Substances Act, 1997 are mandatory in nature and observance thereof is necessary to validate the entry, search seizure and arrest but in this case the proceedings have been conducted in contravention of the said provisions which vitiates the whole action and the appellant is liable to be acquitted nn this score alone. Main reliance has been placed on Nasrullah v. State (supra). We have noticed that this observation has been made during the hearing of bail application by the Full Bench of the Peshawar High Court. It is settled law that the observations at bail stage are made on the basis of tentative assessment of facts and law but same cannot be considered at the time of passing of final judgment after the conviction of an accused by this Court: The question of illegality or irregularity committed during the investigation by the Police Official whether still vitiates the trial or not as in this case, we have already held that the case against the appellant to the extent of recovery of 5-1/2 Kgs. Of opium from his possession. The only question is whether due to the non-observance of provisions provided under the Control of Narcotic Substances Act, 1997 the trial is vitiated or sentence can be maintained. As the question involved is of considerable importance, we consider it necessary to deal it at length whether if the investigation is conducted by an officer below the rank of S.-I. Is an illegality and will vitiate the trial and proceeding. It is an irregularity which is curable under section 537, Cr.P.0 and what will be the effect of this investigation by the incompetent person will vitiate the trial or not. This situation has not been arising for first time in the Indo-Pak Judicial History. It has been discussed obviously in number of judgments and it has been held that if the investigation is conducted by an official below the rank of the official mentioned in the specific provisions, shall not vitiate the trial and will not provide a ground for acquittal of an accused person and it has been held consistently that it is an irregularity which is curable and will not affect the result of the trial. We are fortified by the view taken in Wali Zar v. The State (PLD 1960 (W.P.) Kar. 204). The question in this case was that under section 5-A of the P.C.A., 1947 the investigation could only be conducted by an official not below the rank of D.S.P. But the investigation in this case was held by the S.-I. It was argued on behalf of the appellant after his conviction that the investigation was not conducted by a competent person and it is an illegality and it will vitiate the trial. Reliance was placed on Crown v. Ali Gohar (PLD 1954 Sindh 208), Muhammad Mir Kamhar v. The State (AIR 1953 Galtah 226), State v. Madhan Lal (AIR 1954 Punjab 42) and Abdul Manan v. The State (PLD 1958 Sindh 642). The view taken in this case was that if the investigation is conducted by an incompetent police official it will vitiate the trial and it is an illegality which is not curable and the accused were acquitted. His Lordship Mr. S.A.
Mehmood, J. As he then was has discussed the whole case-law in this regard and has distinguished the above authorities and has held that the investigation even if is conducted by an incompetent person will not vitiate the trial. It is mere irregularity which is curable unless the convict succeeds in making out a case that some prejudice has been caused to him by the investigation of an official below the given rank. The case-law discussed in Walizar's case (supra) and it was held that:-- "It is only an irregularity if investigation of a case under section 5(1), Prevention of Corruption Act (II of 1947) is held by a Police Officer below the rank of a D.S.P. In contravention of section 5-A of the Act, neither the competency or jurisdiction of the Court, nor the admissibility of evidence is affected thereby. The irregularity is curable under section 537, Cr.P.C. Where the irregularity has not resulted in failure of justice, the trial held is not illegal and conviction based thereon cannot be set aside on the ground that the investigation conducted from beginning to end was by incompetent police officers. Though there is a prohibition in section 5-A of the Act that a Police Officer below the rank of a D.S.P.
Cannot investigate into offences triable under the Act, the prohibition is not absolute, for a police officer below the rank of a D.S.P. Would be competent to investigate, if he is permitted by a Magistrate of the First Class to investigate into an offence. The breach lies in the failure to obtain an order from a Magistrate and is therefore an irregularity. When a person accused of the commission of an offence is brought before a competent Court it is not a plea to the jurisdiction of the Court that he had been brought before it by some illegal means.
Likewise it is not a jurisdictional defect in the trial if the investigation is conducted by an incompetent officer or the matter is brought to the notice of the Court in an irregular manner." This finding is based on the dictum laid down in following cases:-- Crown v. Mehar Ali (PLD 1956 SC (Pak.) 106); (Commander) M.S.K. Ibrat v. Commander-in-Chief, Royal Pakistan Navy and others (PLD 1956 SC (Pak.) 264); Prabhu v. Emperor (AIR 1994 PC 73); Zahiruddin v. Emperor (PLD 1947 PC 13); Karuma v. The Queen (PLD 1957 PC 32); Shivbut Manjunathbut Hattangadi v. Emperor (AIR 1928 Born. 162); Rustom Ardeshir Banaji v. Emperor (AIR 1948 Born. 162); Promod Chandra Shekhar v. Rex (AIR 1951 All. 546); Keshav Mantra Shrivastava v.
The State (AIR 1952 All. 122); H.A. Rishbud and another v. The State of Delhi (AIR 1955 SC 196); State of Madhya Pradesh v. Veereshawar Rao Agnihotra (AIR 1957 SC 592); Din Dayal Sharma v. State of U.P.
(AIR 1959 SC 831); Salahuddin v. The Crown (PLD 1956 Lah. 87); Shaikh Abdul Majid v. The State PLD 1958 Kar. 86; Crown v. Noor Alam (PLD 1955 Lah. 667 (D.B.); Crown v. Subhan (PLD 1956 BJ 9) and Abdul Noor alias Nur Mina v. The State (PLD 1958 Dacca 145) ref. Crown v. Ali Gohar (PLD 1954 Sindh 208); Sudhir Kumar v. The State (AIR 1953 Cal. 226); State v.
Madanlal (AIR 1954 Punj. 42; Abdul Manan v. The State (PLD 1958 Kar. 643); Chandra Bapu's case (ILR 49 Bom. 212 and Shivbat's case (ILR 52 Born. 238) considered."
"The correct principle is that when a person accused of an offence is brought before a Court, the Court has to decide on the evidence before it whether an offence is made out against him or not and the question of irregularity in investigation of having been held by an incompetent officer is irrelevant to the question before the Court, except where it is shown that such irregularity has occasioned failure of justice. The power.To take cognizance, the competency to try and the admissibility of the evidence is not affected, and if the trial is valid and has been held in accordance with law, it can only be set aside on the ground that the irregularity has occasioned a miscarriage of justice. My conclusion, therefore, is that there is only an irregularity in the investigation of this case, which was conducted by police officers not authorised by section 5-A of the Prevention of Corruption Act, but neither the competency or jurisdiction of the Court nor the admissibility of the evidence before the Court is affected thereby. The irregularity is curable under section 537 of the Code of Criminal Procedure. It has not been shown that any failure of justice has been caused by the irregularity. I, therefore, hold that the trial held in this case is not illegal or incompetent and that the conviction based thereon cannot be set aside on the ground that the investigation conducted from beginning to end was by incompetent police officers." Similar view has been held in Abdul Noor alias Nur Meah v. The State (PLD 1958 Dacca 145), and also in M. Abdul Latif v. G.M. Paracha and others (1981 SCMR 1101) which is as under:-- "Investigation of offence under section 5(2) by Sub-Inspector and Assistant Sub-Inspector of Police after obtaining permission from Magistrate of First Class as required under section 5-A-- Contention that such investigation was in violation of section 5-A--Held, wholly misconceived."
This question came up for decision before august Supreme Court in State v. Bashir Ahmad (PLD 1997 SC 408). The Supreme Court of Pakistan has held that the illegality or irregularity in the investigation in violation of section 156, Cr.P.0 may not vitiate the trial if no serious prejudice has been caused to the accused person resulting in miscarriage of justice in view of subsection (2) of section 156, Cr.P.C. The relevant portion is reproduced as under:-- "As regards the question, as to whether the above illegality/irregularity if already committed by the C.I.A. Personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.0 expressly provides that; no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. It is an admitted position that the C.I.A. Is part of the Police Force. It is in fact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. May not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C. But it does not mean that the CIA personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law."
The investigation conducted by a person not competent to investigate the case was not held sufficient to vitiate the trial and the appeal was decided on merits and dismissed with the abovesaid observation. The abovesaid paragraph is complete answer to the arguments of the learned counsel for the appellant advanced regarding non-compliance of sections 21, 22 and 26 of the Control of Narcotic Substances Act, 1997 and we hold that though the A.S.-I. Was not competent to investigate the case but it will not vitiate the decision on merits of a case and cannot be a cause for the acceptance of appeal, if the case is otherwise proved against the appellant. E Learned counsel has failed to show that any prejudice has been caused to the appellant by the arrest and recovery of opium by the A.S.-I. Other than S,-I. Hence we hold that even if the investigation has been conducted by the A.S.-I. At the initial stage but on the receipt of secret information by him for the recovery of huge quantity of opium it was not possible for the police official to wait for the arrival of official of the rank of S.-I. In order to arrest the accused and to recover the same from him.
He has rightly acted and apprehended the real culprit. The ease would have been different if an official of the rank of S.-I. Was available but instead of recovery of the narcotics by him the recovery was effected by the A.S.-L It is not the case of the appellant that in spite of availability of the official of the rank of S.-I., the investigation has been conducted by the A.S.-I. On the other side it is the case of the prosecution that this A.S.-I was Incharge of the Police Post at Mianwali and he was only official available at the time of apprehension of the appellant from the spot. The accused persons cannot get the benefit of technicalities if they are in possession of narcotics which is an offence against the society. By the investigation of an A.S.-I. No prejudice has been caused and this act has not resulted into any miscarriage of justice to the F appellant. Thus objection of the learned counsel for the appellant is overruled and cannot be made basis to vitiate the whole trial. As far the contention that only the police officials have been associated at the time of recovery of the narcotics and the person from the locality were not joined in the said proceedings at that time the Hon'ble Supreme Court has held that the general public has shown his reluctance to associate in the recovery proceedings specially in the cases of the accused involved in narcotics as general public cannot face the miseries from the hands of such type of accused persons. It is also well- known that the general public in the District Mianwali is avoiding to associate themselves with the investigation and become witnesses against such type of persons as they do not want to face the enmity of the persons involving in heinous offences. Even otherwise police witnesses are also competent witnesses except it is established that they have any personal ulterior motive to falsely implicate the accused person. Due to the above reasons we do not find any merit in this appeal.
However, we are of the view that as the appellant is first offender and the narcotics recovered from him was less than the quantity of 10 Kgs. Hence from the bare perusal of section 9(c) of the Act, it can be gathered that the sentence of life imprisonment or death in cases involving narcotics with quantity of less than 10 Kgs. Would be too harsh and may not appear to be in consonance with the above provisions and may be highly disproportionate in cases involving quantity of less than 10 Kgs., which normally would not call for a sentence exceeding 14 years' imprisonment. As the appellant is first offender we reduce the sentence of life imprisonment to 10 years' rigorous imprisonment which will meet the ends of justice and we also reduce the fine from one million to half million and in a case of default in payment of fine, the appellant shall undergo further R.I. For one year. The appellant will be entitled to the benefit of section 382-B, Cr.P.C. Subject to the above modification in the quantum of sentence, this appeal fails. Copy of this judgment shall be sent to the learned trial Court for implementation.