Muhammad Muzammal Khan, J.--This judgment proposes to decide Criminal Appeals Nos, 1374/2003 and 1429/2003, as both these appeals assail the judgment dated 21.7.2003 passed by the learned Judge Special Court (Control of Narcotic Substances Act, 1997), Gujranwala, whereby the appellants in both the appeals were convicted under Section 9-C of the Control of Narcotic Substances Act, 1997 and each of them was sentenced to death with a fine of rupees one million or in default thereof to undergo R.I. for six years. Farzand Ali, co-accused of the appellants was, however, given benefit of doubt and was acquitted of the offence charged.
2. Gravament of the charge as per complaint Exh. PE is that on 6.1.2003 Muhammad Ashraf Ali, Inspector Customs (complainant) received a secret.information that a gang of narcotics smugglers led by one Khadim Hussain is operating at Gujranwala by transporting smuggled contraband material from Afghanistan to different parts of the country. On receipt of information, the complainant arranged a raiding party and on pointing out of the informer at 12.15 noon, checked one donkey cart driven by Farzand Ali, carrying nine bags. On checking, it was found that seven bags were of "mix Tuma and Ajwain" (local herbs) and the other two full of opium poppy, which were concealed beneath the seven bags of "mix Tuma and Ajwain". The donkey driver (Farzand Ali) informed the raiding party that he loaded those bags from Azad Sialkot Goods Truck Adda, Bazar No, 1, Sethi Plaza, Gujranwala, as those were personally handed over to him by Muhammad . Tariq Butt. Thereafter, raiding party reached Adda were Muhammad Tariq Butt appellant was available and on his pointation further 20 bags were recovered from the godown within the Adda. In this manner, 22 bags of opium poppy weighing 690 kilograms alongwith 14 bags of local herbs weighing 850 kilograms and donkey cart were seized. Both the accused (Farzand Ali and Muhammad Tariq Butt) were arrested. Complainant (Inspector Customs) drafted the complaint and remitted it through Havaldar Muhammad Hayat to the police station on the basis of which FIR Exh. PA was registered. Complainant on 7.1.2003 arrested Khadim Hussain and on his pointation 143 bags of Poast from his godown situated in Street No, Markaz Sanat Zar. Road, Gujranwala, who during interrogation disclosed that he used to bring Poast from Afghanistan for onward supply to different cities through Truck Adda of Muhammad Tariq Butt and Farzand Ali driver of the donkey 'cart. During investigation all the three accused were found guilty by the investigating officer and challan was sent to the Court of learned Special Judge, CNSA, Gujranwala.
3. Charge against the appellapts was framed to which they did not plead guilty. Prosecution produced five witnesses to prove its case while giving up Akhtar Ali constable being unnecessary.
The appellants did not produce any defence evidence. PW.1 Syed Shujja Haider Kazmi, Deputy Superintendent Customs. Customs House Sambarial, District Sialkot, deposed that on 6.1.2003 he received complaint sent by Muhammad Ashraf Ali Inspector Customs, on the basis of which he registered formal FIR Exh. PA, which bears his signatures. He further stated that he deputed Muhammad Ashraf Inspector Customs, for investigation of the case. PW.2 Mubashir Hussain son of Tajammal Hussain deposed that on 6.1.2003.at about 12.15 noon, he was passing through Bus stop Sheikhupura More for the purpose of his personal work when Muhammad Ashraf Inspector and other Custom employees stopped a donkey-cart driven by Farzand Ali. There were nine bags on the donkey-cart, two containing Poast and the other seven containing Ajwain. He further stated that bags were opened in his presence by the Customs Officer and the above- referred material was recovered therefrom. He affirmed that weight of each bag was 40 kilograms and the two bags recovered containing Poast (P.1/1-2) weighed 80 kilograms, which were taken into custody vide memo Exh. PB, signed by him. PW.3 Havaldar Muhammad Hayat stated that on 6.1.2003 at about 12.15 noon he in the company of Muhammad Ashraf Ali, Customs Inspector and other officials of the customs department, was present on G.T. Road, Sheikhupura More, Gujranwala near Sethi Plaza, when Farzand Ali came there on his donkey cart with nine bags, who was stopped and all the nine bags were opened, seven of which contained "Tuma and Ajwain" and the other two were full of Poast. According to him, Muhammad Ashraf Ali, Inspector Customs took into custody both the bags (P.1/1-2) vide memo Exh.
PB, signed by him, Akhtar Ali and Mubashir Hussain PW, and separated samples of one kilogram from each of the two bags. He also affirmed that Farzand Ali accused during investigation disclosed that those bags were booked by him from Azad Sialkot Goods, where all of them proceeded and Muhammad Tariq Butt was apprehended, who led to recovery of 20 bags more of Poast (P.2/1-20), which were taken into custody by the customs staff through recovery memo Exh.
PC, signed by him, Akhtar Ali constable and Mubashir Hussain PW. He further stated that Muhammad Tariq Butt appellant was arrested and Investigating Officer (Muhammad Ashraf Inspector Customs) undertook all the proceedings at the spot, in his presence. This witness further stated that on 7.1.2003 -in disclosure of Muhammad Tariq Butt and Farzand Ali, they proceeded towards Gakhar for arrest of. Khadim Hussain appellant, who was arrested by the Investigating Officer and on his disclosure 143 bags of Poast were recovered from a godown, besides 26 bags of Zeera and 14 bags of grinded Zeera from two different places situated in Streets Nos, 4 and 5.
Recovery of this contraband (P.3/1-143, P.4 and P.5) was also made in his presence, vide recovery memo Exh. PD, signed by him.
PW. 4 Muhammad Ashraf Ali, Inspector Customs, deposed that on 6.1.2003 at 12.15 noon he in the company of his other staff made Nakabandi at G.T. Road near Sheikhupura More on spy information, when Farzand Ali on a donkey cart was apprehended and Poast (P.1/1-2) was recovered vide memo Exh. PB besides seven bags of local herbs. He further stated that on pointation of Farzand Ali, he raided Truck Adda of Muhammad Tariq Butt appellant, who led to recovery of 20 bags of Poast (P.2/1-20) vide memo Exh. PC, which was attested by Muhammad Hayat and Akhtar Ali constable. He affirmed arrest of Farzand Ali and Muhammad Tariq Butt and stated that he prepared samples of one kilogram from each bag for chemical analysis. He deposed that both the accused were produced before the Special Judge Customs on 7.1.2003 and five days remand was obtained and on their information Khadim Hussain appellant was arrested from Gakhar, who led to recovery of 143 bags of Poast (P.3/1-143) from his godown, situated in street No, 9 Markaz Sanat Zar Road, Gujranwala on 7.1.2003 besides 26 bags of Zeera (P.4) and 1.4 bags of Zeera Powder (P.5), vide recovery memo Exh. PD. PWA also proved drawings of site-plans of the places of recovery from Farzand Ali, Muhammad Tariq Butt and Khadim Hussain, Exh. PB/1, Exh.
PC/1 and Exh. PD/1, respectively, to be in his handwriting and under his signatures. He also proved drafting of Exh. PE and sending it through Havaldar Muhammad Hayat for fbrmal registration of FIR to police station Audit and Intelligence Branch Customs House Sambarial. He also recorded statements of the PWs under Section 161 Cr.P.C. on 6.1.2003 and 7.1.2003. He investigated the case and sent the accused to judicial lockup on 11.1.2003. He also sent the parcels of samples of the recovered material on 15.1.2003 to the office of Chemical Examiner, Lahore and after receiving the report prepared the challan of the case and sent up the same for trial by the Court.
PW.5 Ahmed Kamal, Assistant Collector Customs, deposed that on 14.1.2003 he authorized Muhammad Ashraf Inspector Customs to deliver 165 samples of opium poppy to the office of Chemical Examiner, Lahore, for analysis vide letter Exh. PF. He also stated that this property 165 samples were in the safe custody of State warehouse.
4. After recording the prosecution evidence, statements of the appellants under Section 342 Cr.P.C. were recorded in which they denied the allegations levelled by the prosecution against them.
Farzand Ali acquitted co-accused, refused to appear under Section 340(2) Cr.P.C. and denied to lead any defence evidence. Muhammad Tariq Butt appellant opted to produce defence evidence and also made statement on oath under Section 340(2). Cr.P.C. Khadim Hussain appellant refused to appear to make statement on oath under Section 340(2) Cr.P.C. He, however, opted to produce defence evidence, but later on simply got recorded his own statement without producing any other evidence. In reply to: the question as to why this case against them; Farzand Ali stated that he has been falsely involved by the customs officials only to show their efficieney; Muhammad Tariq Butt appellant replied that he is owner of Truck Adda for the last many years, and his servants used to book goods for different cities and that Khadim Hussain (appellant) used to book Ajwain and Zeera for different cities for the last 5/6 months and in this regard he has record of booking and while refusing the responsibility for the recovery from the bags of Khadim Hussain (appellant) he explained that condition 7 on the back of booking . receipt, clearly shows that in case, contents of the goods booked are not declared the person booking the same will be responsible; Khadim Hussain appellant claiming himself to be innocent and having been involved through mala fide of.
Inspector Customs, denied the recovery of Poast from him. He, however, admitted recovery of Zeera, Tuma and Ajwain from his godown in Street No, 9 Sanat Zar Road, Gujranwala. He pleaded that Poast planted on him was recovered from "Pathan" and not-from him.
5. Muhammad Tariq Butt appellant produced in his. defence Muhammad Rafique son of Abdul Rehman, Munshi of his Adda Azad Sialkot Goods, Gujranwala, who deposed' that he is working as Munshi of Muhammad Tariq Butt, owner of Adda, for,the last five years. According to him Farzand Ali owns a donkey cart, which he used for carrying the goods from their Adda. He stated that on 4.1.2003 Farzand Ali the acquitted co-accused brought goods at Adda and after some time customs officials also came there when the goods was not yet loaded. He on inquiry by 'the customs officials informed them that bags contained Zeera etc. because they previously used to book goods from Adda of this nature.
Muhammad Tariq Butt appeared as his own witness under Section 340(2) Cr.P.C. and narrated the same story given by him in his statement under Section 342 Cr.P.C. At the conclusion of the trial, learned Special Judge CNSA convicted both the appellants, as noted above and acquitted Farzand Ali giving him the benefit of doubt.
6. Learned counsel appearing on behalf of Khadim Hussain (appellant in Criminal Appeal No, 1429/2003) submitted that his client was arrested on 7.1.2003 and the bags of Poast were allegedly recovered the same day, whereas the case was registered on 6.1.2003, without naming him as an accused which shows that the appellant was involved on account of predeliberations/plan to arrest him. According to him the intervening period between the arrest of Khadim Hussain and registration of case, the prosecution had enough time to fulfil the requirements of law regarding raid and his arrest, but none of those were observed in violation of provisions of Sections 21 and 22 of the CNSA and this lapse, negatively reflects on the prosecution story. He further submitted that the alleged recovery was not effected from the house of the appellant and was effected from elsewhere, but owner of the place of recovery has not been produced in evidence, which goes to negate the case against him. Delay in remitting the samples to the office of Chemical Examiner of about 7/8 days has also been emphasized. It was also asserted that bags containing Tuma, Ajwain and Zeera were recovered from the custody of Khadim Hussain and the contraband material of Poast was recovered from elsewhere, but was falsely planted on him out of malice, of the Investigating Officer. It was also urged that appellant was arrested from a thickly populated area and the recovery was also made from alike locality but no private witness was joined in the recovery proceedings which is contrary to the provisions of Section 103 Cr.P.C. Learned counsel for the appellant referred to the cases of Nasrullah vs. The State PLD 2001 Peshawar 152) and Jamal Khan vs. The State (2003 P.Cr.L.J. 1139).
7. Mr. Muhammad Irfan Malik, Advocate counsel for Muhammad Tariq Butt (appellant in Criminal Appeal No, 1374/03) adopting the arguments of the learned counsel appearing for Khadim Hussain appellant contended that his client is only an owner of a Truck Adda and was arrested on the statement of Farzand Ali co-accused. whereas there is no evidence connecting him with the alleged offence. if at all committed by his co-convict Khadim Hussain. He heavily relied on the receipts produced in support of his stand that the goods booked at his Adda were not his property and in view of conditions printed on back of the receipts, he has no involvement in the commission of the alleged offence. He also emphasized that prosecution has not brought any evidence showing his involvement in the business of his co-appellant. Statement of DW.1 was also relied to assert that Muhammad Tariq Butt had no concern with the material recovered from his Truck stand. Reference to the judgments in the cases of Muhammad Nawaz us. The State (NLR 1998 Criminal 717) and Johar All and another vs. The State (2003 P.Cr.L.J. 680) was made in this regard,
8. Ms. Iram Sajjad Gull, Advocate appearing on behalf of the State, refuted the submission of the appellants, supported the judgment of the trial Court and urged that case of the prosecution is proved beyond any shadow of doubt. It was further contended that recovery of contraband material of huge quantity from the possession of the appellants is proved beyond any shadow of doubt and that the statements of the PWs could not be shattered by the defence inspite of lengthy cross-examination. It was also urged on behalf -of the State that there is no material contradiction between the statements of PWs, who are consistent about the commission of offence custody of narcotic material and recovery thereof. Denying argument of the appellant that place of occurrence is in thickly populated area, it was submitted that though Section 103 Cr.P.C. is not applicable to the cases under CNSA, 1997, yet it is to the knowledge of a common man that in such like cases private citizens do not come forward to give evidence against the narcotic gangs. It was also urged that since the recovery from Khadim Hussain appellant is in continuation of one and the same chain of commission of offence, there was no need of mentioning his name in the FIR or of taking of search warrants because there was a likelihood of his abscondence.
9. We have anxiously considered the arguments of the learned counsel for the parties and have examined the entire record minutely. All the five PWs produced by the prosecution have supported the recovery of big ' quantity contraband material of 165 bags each weighing 40 kilograms from the custody of the appellants. None of the PWs had any malice or enmity against the appellants.
Incriminating statements of the prosecution witnesses on oath, proved beyond any shadow of doubt, possession and recovery of narcotic material from them. It is not shown as to why the police planted fake recovery of such huge quantity of Poast; value of which runs in lacs of rupees, just to show its efficiency. Police if at all was under any pressure, which is not proved on the file, could show it by planting lesser quantity or some other narcotic substance of cheaper value. Purchase of 165 bags of Poast each containing 40 kilograms, by a Custom Inspector in Grade 16 is not imaginable and that too for false plantation against the persons with whom he had no enmity.
10. Though there is no material contradictions in the statements of the Pws and they are consistent to each other regarding possession and recovery of the recovered contraband material, yet minor discrepancies are bound to happen by lapse of time and such minor contradictions can neither be considered to vitiate the trial nor those make the recovery from the appellants doubtful.
11. Recovery from the appellants of the narcotic material is not only proved, but has also been certified by the Chemical Examiner through his report Exh. PF/1, as Poast. PWs who are State functionaries and, had no enmity or malice to falsely depose against the appellants, have repeatedly been held as reliable like private witnesses. Reference in this behalf can be made to Maulvi Ghulam Rasool vs. Administrator Auqaf, Sind and another (1976 SCM R 73), Sikandar and 2 others vs. The State (PLD 1978 SCM R 185), Gul Nawaz vs. The State (1998 P.Cr.L.J. 1730), Feroze Shah vs. The State (2002 P.Cr.L.J. 1470) and Mirza Shah vs. The State (1992 SCM R 1475).
12. Adverting to objections of the appellants regarding non-joining of any private witness in the raid or recovery proceedings and the argument that inspite of registration of case a day earlier to the arrest of Khadim Hussain appellant, we are of the view that Control of Narcotics Substance Act, 1997 is a complete code in itself and in presence of Section 25 therein provisions of Section 103 Cr.P.C. will not be attracted. Even otherwise, the persons involved in narcotics business are known as equipped gangs and a man in street would not dare to come forward to make statement against them by leaving his own means of livelihood through business or job at the cost of their enmity. Similarly defence of the appellant Muhammad Tariq Butt that he booked Ajwain, Tuma and Zeera is of no help to his case because out of receipts produced by him last receipt is Exh. DB, which caries Serial 'No, 2500 and is dated 4.1.2003, whereas the case in hand was registered on 6.1.2003. Likewise, according to statement of Munshi Muhammad Rafique (DW.1) Farzand All the acquitted accused, brought nine bags of Ajwain and Tuma at their Adda on 6.1.2003 and the material recovered (20 bags) were not shown to have been booked under any receipt. Besides it, the receipts produced negate that five bags of Ajwain were booked through Receipt No, 2476 on booking of Khadim Hussain for Okara and 15 bags of Ajwain were booked through Receipt No, 2475 for Pattoki, but these receipts .do not relate to Azad Sialkot Goods, the Adda owned by the appellant Muhammad Tariq Butt. According to his own statement, he was acquainted with Khadim Hussain for the last 5/6 months, whereas his Munshi (DW.1) stated that Khadim Hussain used to book his material for the period beyond one year. All these factors show that both the appellants were involved in the illegal business of transporting narcotics material under the garb of local herbs i,e, Ajwain, Zeera etc. and the plea brought in defence on the face of it, is afterthought. The defence version of Khadim Hussain appellant of recovery of Poast from "Pathan" is also not spelled out of the evidence either of the prosecution or by his own statements under Section 342 or 340(2)
Cr.P.C. He also has not explained as to why the custom authorities would plant recovery on him when he has no enmity with them.
13. For what has been discussed above, we are of the considered view that the trial Court has Tightly concluded the charge against the appellants and has rightly convicted them. However, viewing the nature of the narcotic substance (Poast) recovered from the appellants, we feel that sentences awarded to them are excessive and accordingly convert the death sentence of Khadim Hussain (appellant in Criminal Appeal No, 1429/03) to life imprisonment and that of Muhammad Tariq Butt (appellant in Criminal Appeal No, 1374/03) to sentence of 10 years R.I. by maintaining the fine of rupees one million each or in default of its payment to further undergo R.I. for six years, as recorded by the trial Court. Both the appellants will be entitled to benefit of Section 382-B Cr.P.C.
Consequently, both the appeals (Criminal Appeals Nos, 1374/2003 and 1429/2003) are partly allowed.