' MUHAMMAD MUZAMMAL KHAN, J.--- The appellant, Muhammad Hussain, challenged the judgment dated 27-4-2002 passed by the learned Judge, Special Court (C.N.S.), Lahore, passed against him and another in a narcotics case No,26 of 2000 whereby he was found guilty of committing an offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter to be referred as to the Act), thereby sentencing him to suffer imprisonment for life with a fine of Rs,5 lacs, in default of its payment to undergo further imprisonment for a period of one year, with benefit under section 382-B, Cr.P.C.
2. Precisely, case of the prosecution is that on 16-12-1999, Senior Officers of A.N.F. Received spy information about possession of narcotics by the appellant, on this information, a raiding party was arranged under the supervision of Lt.-Col. Manzar Akbar, Joint Director, A.N.F., Lahore, Muhammad Afzal Asim, S.-I./S.H.O., Muhammad Riaz Soomro. Assistant Director, Fajjar Khan, H.C., Muhammad Yar Wattoo Constable and many other officials of A.N.F. The raiding party at about 4- 00 a.m. Raided the house of Muhammad Hussain situated at Jandiala Sher Khan within the area of Police Station Sadar, District Sheikhupura and two persons clad in Chadars, were found coming out of the main gate who were apprehended and on interrogation, disclosed their names as Muhammad Hussain son of Muhammad Aslam and Muhammad Nawaz son of Ghulam Muhammad. On their search, a plastic Torra containing 12 packets of Charas weighing 12 Kgs. And heroin weighing 1.4 Kgs. Was recovered from Muhammad Hussain appellant whereas on the search of Muhammad Nawaz his companion a shopping bag containing six packets of Charas weighing 6.855 Kgs. In pieces heroin weighing of 655 gram and opium of weighing 500 grams was recovered from his possession Muhammad Afzal Asim (P.W.5) Investigating Officer, vide recovery memo. Exh.P.B. Took into custody, the recovered Charas and heroin. He separated 10 grams of Charas and 5 grams of heroin from each recovered packet of the appellant and made the same into the sealed parcels. He also recovered certain articles from the person of the appellant which were taken into possession vide recovery memo. Exh.P.E. All the recovery memos. Were attested by Fajjar Khan H.C. And Muhammad Yar Wattoo constable (P.Ws.) The Investigating Officer drafted the complaint Exh.P.A. And sent the same to police station through Muhammad Aslam constable for registration of the case P.W.5 also prepared site plan without scale Exh.P.F. Of the place of recovery and recorded statements of the P.Ws. Under section 161, Cr.P.C. And on his return to police station he deposited the case property with the Moharrir of the police station, for safe custody in Maikhana. This witness also recorded statements of P.Ws. In respect of dispatch of samples to the office of Chemical Examiner and received positive reports Exh.P.G. And Exh.P.G./1. During investigation, the appellant and his companions were found guilty of possessing huge quantity of drugs and consequently were challaned and sent for trial before the Court.
3. A formal charge for possession and transportation against the appellant was framed, to which he did not plead guilty. Prosecution produced five witnesses against the appellant whereas one Fajjar Khan H.C. Being unnecessary was given up. Prosecution closed its evidence, by tendering the description certificate in respecrof case property which was recovered from the convicts vide recovery memos. Exh.P.G. And Exh.P.G./1.
4. The appellant (convict) in his statement recorded under section 340(2), Cr.P.C. Stated that he had enmity with Muhammad Ramzan son of Muhammad Aamir informer/spy who on account of it got him falsely implicated. The appellant volunteered to give oath under section 342, Cr.P.C.
Regarding his innocence and wanted to produce defence evidence but after appearing in defence as D.W.1 stated that no further defence evidence shall be produced by him.
5. Learned trial Judge who was seized of the matter, constructed double record of the proceedings, one in Urdu and the other in English and recorded in the like manner, the statement of witnesses P.W.1 is Muhammad Sarwar, A.S.-I. Police Station A.N.F., Lahore, who stated that Muhammad Afzal Asim, S.-I. On 16-12-1999 deposited with him 21 parcels, containing Charas, 4 parcels of heroin and 2 parcels of opium which were handed over to him as Moharrir. He further stated that on 22-12-1999 he sent 19 parcels of Charas, two parcels of heroin and one parcel of opium intact through Abdul Ghafoor constable for onward delivery to the office of Chemical Examiner. He also deposed that his statement under section 161, Cr.P.C. Was also recorded. P.W.2 is Abdul Ghafoor, constable who made a statement that during his posting as constable in Police Station A.N.F., Muhammad Sarwar, Moharrir handed over to him 19 parcels of Charas, two parcels of heroin and one parcel of opium intact, which were delivered by him to Office of Chemical Examiner. He affirmed that his statement under section 161, Cr.P.C. Was recorded. P.W.3 is Muhammad Arshad Khan, S.-1. According to this witness, he while posted at Police Station A.N.F., Lahore on 16-12-1999 received a complaint sent by Muhammad Afzal Asim A.S.-I. Through Muhammad Aslam constable for recording formal F I. R He also stated that Exh.P.A. Is correct carbon copy of the F.I.R which was recorded by him without any addition or omission and was in his handwriting and bore his signatures. P.W.4 is Muhammad Yar Wattoo, constable, according to him, on 16-12-1999, on secret information raid was conducted at Jandiala Sher Khan, District Sheikhupura, and he was a member of the raiding party headed by Capt. Farooq Aziz. He further deposed that. On pointation of the informer, house of Muhammad Hussain was raided and two persons clad in Chadars, coming out of the main gate and were arrested who disclosed their names as Muhammad Hussain and Muhammad Nawaz. According to him, on search of Muhammad Hussain, appellant, a plastic "Torra" in his right hand was recovered which contained 12 packet of Charas and heroin. P.W.4 further stated that Investigating Officer separated 10 grams of Charas from each packet and 5 grams of heroin recovered from the possession of the appellant, whereafter Investigating Officer took possession of the narcotics recovered vide recovery memo. Exh.P.C. Which was signed by him and Fajjar Khan H.C. Recovered narcotics from the custody of the appellant was sealed into parcel. The other articles recovered from the possession of the appellant were taken into possession vide recovery memo. Exh.P.D. And Exh.P.E. Signed by him and Fajjar Khan H.C. He also affirmed recording of his statement under section 161, Cr.P.C. P.W.5 is Muhammad Afzal, S.-I. Who deposed that Senior Officers of A.N.F.
Received a secret information that Muhammad Hussain, appellant is involved in dealing in narcotics and was having heavy quantity of drugs in his stock and on this information, a raiding party consisting of him and officials of A.N.F. Was prepared headed by Capt. Farooq Aziz and supervised by Lt.-Col. Manzar Akbar. According to this witness raiding party at about 4-00 a.m.
Reached Jandiala Sher Khan in the official vehicles and on pointation of the informer, raided at the house of Muhammad Hussain, appellant. According to him two persons clad in "Chadars" were coming out of the main gate, who were arrested and disclosed their names as Muhammad Hussain and Muhammad Nawaz. He further stated that Muhammad Hussain was holding a plastic "Torra" in his right hand here from 12 packets of Charas and heroin were recovered (Exh.P.4 and Exh.P.5) weighing 12 Kgs. Of Charas and 1.4 Kgs. Heroin. He also stated that 10 grams of Charas from each packet and 5 grams of heroin was separated by him, as sample, which was taken into possession. He also stated that he recovered other articles from the custody of both the accused persons vide recovery memo. Exh.P.D. And Exh.P.E. Which were signed by him and other P.Ws. He approved drafting of complaint Exh.P.A./1 and its transmission to police station through Muhammad Aslam constable for recording of formal F.I.R. Complaint was deposed to be in his handwriting containing his signatures. He stated that he prepared the site plan Exh.P.F. Of the place of recovery, notes and drawing on the plan, was stated to be in his handwriting and with his signatures, thereon. He further made a statement that he recorded statements of P.Ws. Under section 161, Cr.P.C. At the spot and affirmed that on his return, the case property was deposited with Moharrir of the police station. He received the Chemical Examiner report Exh.P.G. And Exh.P.G./1 regarding samples sent for chemical examination. He also stated to have recorded statement of P.
Ws. In respect of dispatch of samples to Chemical Examiner and regarding completion of challan whereafter it was sent by him to the Court for its trial.
6. After recording of prosecution evidence, statement of the appellant under section 340(2), Cr.P.C.
Was recorded in which he denied the recovery of Charas and heroin from his custody and pleaded that it was falsely planted by the police, on account of his enmity with Muhammad Ramzan son of Muhammad Aamir, the informer and opted to lead defence evidence.
7. Learned counsel for the appellant submits that there are major discrepancies and contradictions between the statements of prosecution witnesses as such, conviction of the appellant cannot be maintained on such evidence. He in this behalf referred to statement of P.W.4 F.C. a member of the raiding party who had stated that raiding party was headed by Capt. Farooq Aziz whereas in the F.I.R. Raid was alleged to be supervised by Lt.-Col. Manzar Akbar. According to him, P.W.4 could not give the distance which the raiding party travelled to conduct the raid who also stated that 12 packets of Charas and heroin were recovered whereas according to the complainant those were 13 in number and these contradictions in the statement of P.W.4 show that he was not present at the time of raid and has subsequently, been shown to have associated the alleged raid. Learned counsel for the appellant further pointed out that story of raid at 4-00 a.m. Is not probable because at that time nobody would come out of his house. He further referred to map Exh.P.F. Wherein place of recovery is shown with "A" within the compound of the house and on the basis of it argued that raid was illegally conducted without obtaining a warrant under section 25 Of the Act and in absence of any such warrant, no resort even to section 21 of the Act was made because Investigating Officer has not mentioned that he conducted this raid inside the house on account of fear of.Escape of the accused persons or removal of narcotics and lapse of Investigating Officer to these provisions of law makes the entire activity illegal. He further submitted that assuming for the sake of arguments that raid was conducted at 4-00 a.m. But none of the residents of the locality was joined in the raid proceedings, as according to him, some Imam of mosque, Chokidar or Lumbardar of the village would have been made available at that time and this shows not only the violation of section 103, Cr.P.C. But it, also negatively reflects on the raid proceedings. It has also been contended that recovery of such a huge quantity of narcotics allegedly made from the possession of ti:e appellant who during the entire trial of the case, could not engage any private counsel and the trial Court three times appointed defence counsel at the State expense, shows that the appellant is a poor man and cannot possess the alleged recovered narcotics. It has also been submitted that the appellant has been involved due to his enmity with the informer otherwise case against him is false. He also referred to Chemical Examiner report (Exh.P.G.) which was confronted to him and he stated that it does not relate to him, as it contained opium as well and on the basis of it, he could not have been convicted. He further elaborated his arguments, by saying that on the basis of Exh.P.G., case of the appellant goes out of the proviso to section 9(c) of the Act. It is also his argument that as per Exh.P.G. And Exh.P.G./1, 22 packets were sent for chemical examination whereas P.W. I deposed that 27 packets were sent for this purpose. He finally relied on the judgments of Shahmore v. The State PLD 2003 Kar. 230, Dris v. The State 2001 YLR 3078 and Iltaf Hussain v. The State 1996 SCM R 167 to support his above arguments and prayed acquittal of the appellant.
8. Learned Special Prosecutor of A.N.F. Refuted the assertions of the appellant supported the conviction awarded through impugned judgment and urged that raiding party did not go inside the house as the convicts were apprehended/arrested outside the house, as such no violation of sections 20 and 21 of the Act occasioned. He further contended that in view of provisions of section 25 of the Act, no private witness was needed to be associated in the raid proceedings and section 103 of the Cr.P.C. Was not applicable. He further submitted that both the words "leading" and "supervising" the raid, used in the F.I.R. And in the statements of the P. Ws. Have different connotation. The Officer supervising the raid can do this act while sitting away whereas the person leading raid, means the head of the raiding party, in this manner he argued that there is no contradiction as pointed by the learned counsel for the appellant. Learned Special Prosecutor of A.N.F. Argued with emphasis that recovery of heavy narcotics from the appellant could not be shattered in spite of lengthy cross-examination by the defence and recovery of Charas and heroin (Exh.P.4 and Exh.P.5) is duly reflected in Exh.P.C. And is proved on the file, beyond any shadow of doubt. Replying to arguments of the learned counsel for the appellant regarding confrontation of Exh.P.G. (Chemical Examiner report) he argued that two Chemical reports one concerning the other convict namely Muhammad Nawaz (co-accused of the appellant) and that relating to the appellant were received but while marking these reports Exh.P.G./1 was written the report of Muhammad Hussain whereas Exh.P.G. Was written on the report of Muhammad Nawaz; co-convict and it happened due to inadvertence/oversight. He referred to section 537, Cr.P.C. To urge that this minor fault in marking of the chemical report does not vitiate the trial or the conviction awarded to the appellant and has no negative. Reflection on the prosecution case. He further argued that these reports were correctly put/confronted to the convicts that is why they have not suggested any question to the P.Ws. In absence of which, no lenient view can be taken in their favor. He further relied on section 29 of the Act to submit that initial presumption, is that the appellant committed the offence of possessing narcotics as alleged by the prosecution, but no evidence to rebut this legal presumption, was produced by him and in this manner, the judgment impugned, requires no interference by this Court. According to the prosecution, neither any enmity or malice was asserted against any of the officials forming raiding party nor the same is proved on the file and mere assertion, without proof that informer had some enmity, does not lead to inference that case against the appellant is false. Replying the argument of the appellant that he is poor man and cannot be said to have possessed a huge quantity of narcotics, section 18 of the Act was banked by the prosecutor, to urge that status or monitary position of the accused is not relevant while awarding punishment, under the Act. According to his submission, the trial Court has already taken a lenient view by awarding the appellant lesser punishment and in this manner no further reduction therein, can be made under law.
9. We have anxiously considered the arguments of the learned counsel for the parties and have examined the entire record minutely. All the 5 P.Ws. Produced by the prosecution have supported recovery of 12 kilograms of Charas and 1.4 Kgs. Of heroin from the appellant who have not been proved to have any malice or enmity against him. Incriminating statements on oath of the prosecution witnesses proved beyond any shadow of doubt recovery of heavy quantity of narcotics from the appellant. It is not pointed out as to why higher officials of A.N.F. Or the police would make fake recovery just to please the informer whose enmity with the appellant is also not proved on the file.
10. No doubt in the site plan Exh.P.F. "A" showing entrance of the house, is written inside the courtyard, by the Investigating Officer but it does not mean that at this place the recovery was effected. All the P.Ws. Are consistent about recovery of narcotics from the possession of the appellant, outside the house and in this manner no violation of sections 20 and 21 of the Act occasioned, to the advantage of the appellant. The raiding party did not enter the house of the appellant and thus, we are not persuaded to take view contrary to the one taken by the learned trial Judge. Similarly, under section 25 of the Act, there was no necessity of joining any private individual to the proceedings of raid and in such-like cases it is open to everybody, that public normally avoid to become a witness to such proceedings. Provisions of section 103, Cr.P.C. Are otherwise not applicable to the cases under the Control of Narcotic substances Act, 1997.
Judgment in the case of Iltaf Hussain (supra) relied by the learned counsel for the appellant was pronounced on 2-10-1995 when the Act under discussion had not been promulgated and thus, in our view this judgment is of no help to the case of the appellant.
11. As regards contradictions pointed out by the learned counsel for the appellant, those are of so minor nature that those neither can be considered to vitiate the trial nor to make the recovery from the appellant doubtful. Such minor discrepancies, if any, are bound to happen by lapse of time. The incident in the case in hand took pla on 16-12-1999 and the statements of the P.Ws. Were recorded on 3-4-2001nearly after one year and four months as such, we are not ready to bank upon such minor discrepancies to set aside the judgment, impugned, which is absolutely in consonance with the evidence on the file. In the same manner we are not inclined to doubt the recovery of narcotics from the appellant which is proved to the hilt as discussed above, solely on the ground that the appellant did not engage any private counsel to contest the case against him. Learned Special Prosecutor has rightly relied on section 18 of the Act to submit that while awarding punishment, status or monitary position of the accused, is not relevant. This assertion, at the same time, does not negatively reflect on the prosecution case. The appellant though claimed some enmity with informer but it is not proved on the file.
12. In response to arguments of the appellant, we have examined both the reports of the Chemical Examiner (Exh.P.G. And Exh.P.G./1) and find that those have been marked correctly. As a matter-of fact, report relating to the appellant has been marked as Exh.P.G./1 whereas report of his co-convict (Muhammad Nawaz) has been marked as Exh.P.G. But the learned trial Judge through oversight or out of typographical mistake while putting question No,3 in the statement of the appellant under section 342, Cr.P.C. Mentioned Exh.P.G. Instead of Exh.P.G./1. Difference in both these reports is that Exh.P.G. Contains sample of opium whereas report of the appellant does not contain opium. Both the reports were on the file and none of the counsel appearing on behalf of the defence the Court or the prosecution, noted this incorrect mentioning of exhibits therein. It is just a mistake, which occasioned out of inadvertence. We have examined the entire cross-examination of all the P.Ws.
No cross-examination touching these reports or any kind of suggestion on this point, was made and thus, we are clear in our mind that this inadvertent mentioning of Chemical Examiner report in the statement of the appellant did not prejudice his case nor it makes the prosecution version doubtful or takes away the recovery of narcotics froth his possession. Such inadvertence/typographical mistake does not vitiate the proceedings or the conviction awarded by the trial Court and the relevant law, is contained in section 537 of the Criminal Procedure Code, 1898, which reads as under:--- "537. Finding or sentence when reversible by reason of error Or omission in charge or other proceedings.--- Subject to the provisions hereinbefore, contained no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision- on account.
(a) of any error, omission or irregularity in the complaint, report by Police Officer under section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice."
' It is clear from the language of section 537, Cr.P.C. Above reproduced that no findings or sentence passed by any Court of competent jurisdiction, shall be reversed, or altered on account of any error in charge or trial of the case, thus, we are not ready to set aside the judgment impugned, which as' observed does not vitiate on this irregularity, if any by the trial Court while confronting these reports to the accused persons (appellant and Muhammad Nawaz) report Exh.P.G. Was written in the statement of both the convicts as Exh.P.G., whereas in the statement of Muhammad Hussain under section 342, Cr.P.C. It should have been mentioned as Exh.P.G./1. To our mind, it is just a typographical mistake which remained unnoticed by the learned counsel appearing on behalf of the accused person, the Court and the prosecutor. The difference in both these reports is that in report Exh.P.G. Seven packets containing Charas, heroin and opium were examined by the Chemical Examiner whereas in Exh.P.G./1-12 packets of Charas and one of heroin was reported to have been examined. In the latter mentioned report (Exh.P.G./1) opium has not been mentioned.
Our view is that the appellant was confronted with Exh.P.G./1 but at the time of recording his statement, above referred only Exh.P.G. Was written and (1) could not be added to (G) due to oversight/typographical mistake.
13. Recovery from the possession of the appellant, Charas weighing 1200 Kgs. And heroin weighing 1.4 Kgs. As noted above, is proved and has also been certified by the Chemical Examiner through his report Exh.P.G../1 as Charas and heroin. Consistent statements of all the P.Ws. Who have repeatedly been held as reliable like private witnesses, as they are not proved to have any enmity with the appellant or to have any interest to depose falsely, to wrongly implicate him State functionaries appearing in support of prosecution case, are trustworthy witnesses as they have no motive to falsely depose and they have no enmity against the appellant. It has been repeatedly held by the superior judiciary of this country that such witnesses are reliable and conviction on the basis of their statements can lawfully be passed. A reference in this behalf can be made to the cases of Maulvi Ghulam Rasool v. Administrator Auqaf, Sindh and another 1976 SCM R 73, Sikandar and 2 others v. The State PLD 1978 SC 185, Gul Nawaz v. The State 1998 P Cr. L J 1730, Feroze Shah v.
The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCM R 1475. In view of this settled proposition, we are constrained to hold that statements of P.Ws., do not leave any doubt about prosecution case and thus, we find that the trial Court has rightly relied on the P.Ws. For the decision impugned in this appeal.
14. The appellant initially desired to lead defence evidence but subsequently, after appearing as D.W.1 under section 340(2), Cr.P.C. Closed his evidence. In this statement, he stated that on 15-12- 1999 one Muhammad Ramzan son of Aamir got raided his house and denied recovery of narcotics from his possession. He also stated that police recovered from his possession Pakistani currency, two National Identity Cards, Pakistan Post Office Books and one other book and narrated that police at the first instance conducted raid at the house of Allah Rakha who fled away but his brother was arrested and was let off by the police. He further deposed that he had a quarrel with Muhammad Ramzan son of Muhammad Aamir and on account of this dispute he has been involved in this false case. The appellant did not give the details of the asserted quarrel with Ramzan and also did not mention his enmity with any of the members of the raiding party. There is no corroboration of his statement in form of evidence and his statement in isolation, to refute the impact of unsheltered statements of the P.Ws. Cannot be relied to his advantage. At the same time false plantation of such a huge narcotics, at the instance of Muhammad Ramzan is not believable who is also not shown to have such means of expending price of the narcotics recovered from the appellant.
15. We have no doubt in our mind, that prosecution has successfully proved its case against the appellant and we find that trial Court has rightly concluded the charge against the appellant and correctly convicted him for the sentence awarded. There is no merit in this appeal and we accordingly dismiss it.