' M. JAVED BUTTAR, J.---The appellants, (1) Muhammad lddrees Butt, (Criminal Appeal No.129 of 2000), (2) Asad Ullah (Criminal Appeal No.101 of 2000), (3) Ifiikhar Hussain (Criminal Appeal No.102 of 2000), (4) Muhammad Riaz and, (5) Abdul Khaliq (Criminal Appeal No.200 of 2000), were tried by Special Judge, Anti-Narcotics, Lahore, in crime case F.I.R. No.15 dated 24-5-1999, registered at Police Station, Anti-Narcotics Force, Lahore, under sections 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997, 161, P.P.C., 5(2) of Prevention of Corruption Act, 1947, and 13 of the Pakistan Arms Ordinance XX of 1965, for the alleged recovery of heroin weighing 32 Kgs. From the possession of aforementioned appellants Nos. 1 to 3 and for aiding, abetment and association by aforementioned, appellants Nos.4 and 5 in the commission of narcotics offences. The learned trial Court, vide its judgment dated 14.2.2000, convicted the aforementioned appellants Nos.1 to 3, under section 9(c) read with sections 14 and 15 of Control of Narcotic Substances Act, 1997, and sentenced each of them to death. They were also awarded fines as under:
(1) Muhammad Iddrees Butt Rs.50,000
(2) Asad Ullah Khan Rs.10,000
(3) Iftikhar Hussain Rs.10,000 ' The appellants, Muhammad Riaz and Abdul Khaliq, were also convicted under section 9 of Control of Narcotic Substances Act, 1997, and sentenced to five years R.I., each.
' They were, however, given the benefit as contemplated under section 382-B, Cr.P.C.
' The appellants have assailed the legality and correctness of their convictions and sentences, through the above-mentioned appeals, which are being disposed of through this single judgment.
2. The prosecution case as set up in the complaint (Exh.P.C.) briefly is that on 24-5-1999, on receipt of secret information, a raiding party under the supervision of Major Abdul Rab and Syed Hassan ljaz Kazmi, Deputy Directors, comprising of Captain Mian Farooq Aziz, Inspector/S.11.0., Police Station A.N.F., Lahore, Ahmad Jalil Raja (P.W.4), Subedar Pervaiz Iqbal, Muhammad Sarwar Bhutta, S.-I., Havaldars Muhammad Ajmal and Muhammad Razzaq, Naik Shaheen, Lance Naik Ashraf; Maroof and Khalid, G.Ds, Sepoys Muhammad Aamar, Muhammad Shafique, Akbar, Umer Shahzad, Shah Nawaz, ljaz, Haji Abid, Iddrees, Allah Yar, Shaukat Ali H.C. (P.W.3), Constables Muhammad Saleem., Azmat Ali, Muhammad Shafique, Abdul Sattar Drivers Maroof; Sukhawat:, Mumtaz, Ramzan and Qayyum, was constituted by ANF, Lahore. The raiding party reached at Allama Iqbal Chowk near Railway Station Sialkot, on official vehicles and started secret surveillance, by parking its vehicles at a site. At about 1-30 p.m., on the pointation of the informer, a Suzuki Carry Van bearing Registration No.ADB-1888 was intercepted. Three persons were found sitting in the said Suzuki Carry Van. They disclosed their names as Dr. Muhammad Iddrees Butt son of Faqir Muhammad, resident of Street No.9, Mohallah Darbar Sharif: Pacca Garha, Sialkot, Asad Ullah son of Muhammad Yousaf Khan, caste Pathan, resident of Kotla Kahloonwan, Police Station, Kot Nainan, Tehsil Shakargarh, District Narowal, and Syed Iftikhar Ahmad Shah son of Syed Sadiq Hussain, resident of Rawali Wal, Police Station, Kotli Loharan, District Sialkot. Two motor cycles, one Yamaha and one Honda, driven by two persons, were seen following the Suzuki Carry Van. They were also apprehended. They disclosed their names as Muhammad Riaz son of Haji Rehmat Ali, resident of Dargaee Wala, Police Station, Ali Pur Chatthha, District Gujranwala, and Abdul Khaliq son of Abbas Ali, caste Mughal, Post Office Saukan Wind, Police Station Qila Qadir Wala, Tehsil Pasrur, District Sialkot. The raiding party headed by Ahmad Jalil Raji. (P.W.4) conducted the search of the Suzuki Carry Van and recovered a Nylon Bag lying in front of the feet of Dr. Muhammad Iddrees Butt accused, who was sitting on the driving seat of the said vehicle and from this Nylon Bag, 12 packets of heroin of one kilogram each (Exh.P.1/1-12) were recovered. Asad Ullah, accused, was sitting on the front seat of the said Carry Vali, besides the driving seat and from the place in tront of his feet, a bag was lying from which 10 packets of heroin of one kilogram each (Exh.P.2/13-22) were recovered. Syed Iftikhar Ahmad Shah, accused, was sitting on the rear seat of the Van and from the place in front of his seat, a bag containing 10 packets of heroin of one kilogram each (Exh.P.3/23-32) was recovered. The total weight of heroin recovered from these three appellants was 32 Kgs. The Investigating Officer, Ahmad Jalil Raja (P.W.4) separated five grams of heroin from each packet and prepared 32 sealed sample parcels for chemical analysis. The sealed sample parcels and the sealed parcel of rest of the heroin, were taken into possession by putting a seal of words `A.N.T.F.' and Suzuki Carry Van, vide recovery memo. Exh.P.A, which was prepared by P.W.4 on the spot and was signed by him besides Muhammad Sarwar Bhutta, S.-I. (given up) and Shaukat Ali, H.0 (P.W.3). He also took into custody motorcycles, bearing Registration No.GAF-9984 Honda CD-70 and Yamaha 100-CC, without registration number, vide recovery memo. (Exh.P.B.), signed by the same witnesses as of memo. (Exh.P.A.). These motorcycles and their riders namely Abdul Khaliq and Muhammad Riaz, accused (appellants) were alleged to be protecting the Suzuki Carry Van. The personal search of Abdul Khaliq accused led to the recovery of Colt Revolver .38 bore with 13 live bullets, which was also taken into possession. Later on it was discovered that it was licensed revolver in the custody of Abdul Khaliq. It is further alleged in the complaint that accused Dr. Muhammad Iddrees Butt informed that he with the help and connivance of accused Asad Ullah and Iftikhar Shah, who are A.S.-Is. In C.I.A., Sialkot, deals in the business of narcotics and today, these A.S.-Is. Had recovered this, heroin from two Pathans from Suzuki Carry Van No.ADB-1888 and let those Pathans off for illegal gratification of cash of Rs.40,000 and the aforesaid Suzuki Van and distributed the heroin and cash amount amongst themselves. Further stated that each of the three accused kept 10 Kgs.
Of heroin each, for themselves and rest of heroin weighing 2 Kgs. Was the share of Riaz and Khaliq accused, who are Constables in C.I.A., Sialkot. Their share of heroin was to be sold and the sale money was to be paid to them. It is also mentioned that this accused went on to disclose that previously also, they had committed many such like offences. The Investigating Officer /P.W.4 prepared the complaint (Exh.P.C.) on the spot and sent the same through Muhammad Shafique, Constable, to the Police Station for registration of formal F.I.R., which was recorded by Nasir Aziz, S.-1.
On the same day at 5-15 p.m. The complainant also prepared the site plan of the place of recovery (Exh.P.D.), recorded the statements of the P.Ws under section 161, Cr.P.C., obtained report of Chemical Examiner (Exh.P.E.), which was positive, got the confessional statement .Of Muhammad Iddrees Butt (appellant) recorded under section 164, Cr.P.C., from the Court of Ch. Irfan Qadir, Ilaqa Magistrate (P.W.5) on 3-6-1999, completed the investigation and sent up the challan against the accused persons vide his report dated 10-7-1999, under section 173, Cr.P.C.
3. The charge was framed on 23-9-1999, which was pleaded not guilty by the accused, who claimed trial.
4. The prosecution has examined five witnesses to prove its case.
5. P.W.1, Muhammad Sarwar, Moharrir/H.C., Police Station, ANF, Lahore, stated that on 24-5-1999, 32 samples of heroin were handed over to him by the Investigating Officer for safe keeping in the Mallkhana and he handed over the sealed samples on 25-5-1999 to Abdul Ghafoor, Constable for onward transmission to the office of Chemical Examiner, Lahore. In the cross-examination, he stated that the samples were sealed with the stamp of ANTF and that his statement in this regard was recorded by the Investigating Officer on 25-5-1999 and not on 24-5-1999.
6. P.W.2, Abdul Ghafoor, Constable, Police Station, ANF, Lahore, stated that on 25-5-1999, 32 sealed parcels with the seal of ANTF containing heroin were handed over to him by Muhammad Sarwar, Moharrir (P.W.1) and he deposited the same in the office of Chemical Examiner, Lahore, on the same day. In the cross-examination, he stated that it was not in his knowledge that the accused Iddrees Butt had given an application to S.H.O., Police Station Uggoke, against him and other officers of ANF, Lahore and denied the suggestions that they had conducted a raid at the house of Iddrees Butt and had taken away the letter pads, Rs.50,000 and other articles from his house and that a request was made that a case be registered against him and other police officials of ANF, Lahore. He, however, admitted that his name figured in the application dated 20-5-1999, which was given to S.H.O., Police Station Uggoke, by accused Muhammad Iddrees Butt.
7. P.W.3, Shaukat Ali, H.C., Police Station, ANF, Lahore, was member of the raiding party. He is also an attesting witness of recovery memos. Exh.P.A. (of heroin and Suzuki Van etc.) and Exh.P.B. (of motorcycles). In his examination-inchief he fully supported the prosecution case/complaint, detailed above. He further stated that during interrogation, Muhammad Iddrees Butt disclosed that some heroin was lying in his house. He led the raiding party to his house wherefrom 2 Kgs. Heroin was recovered and in this: connection a separate case (F.I.R. No.16 of 99 dated 24-5-1999, for the offences under sections 9(c) & 15 of Control of Narcotic Substances Act, 1997, and 13 of the Pakistan Arms Ordinance XX of 1965) was registered. In the cross-.Examination, he stated that he cannot deny the suggestion that he appeared in over 100 cases with Ahmad Jalil Raja, Investigating Officer and denied the suggestion that he had been cited as witness in every case of Ahmad Jalil Raja. He also stated that he is being marked present in the office of Model Town and remains on duty from 8-00 a.m. To 3-00 p.m. And that he did not go to Sialkot prior to 24-5-1999 in connection with the investigation of this case. He could not give the registration numbers of the four official vehicles in which the raiding party went to Sialkot. Similarly, he failed to tell the names of the drivers of those vehicles. He also could not tell the names of 5/6 other officials, who were sitting in the vehicle of Raja Jalil. He went on to state that they reached Sialkot at about 11-15 a.m., at the place of occurrence quite near to the Railway Station, they saw the Carry Van at about 1-30 p.m, it was coming from the Railway Station to Allama Iqbal Chowk, it was being driven by Muhammad Iddrees Butt, the keys of the Carry Van were taken into possession by the Investigating Officer, about 40/50 persons had assembled at the place of recovery, the Investigating Officer had asked some persons to become witness but nobody was prepared to do so and that the raid at the house of Muhammad Iddrees Butt, was conducted at about 4/4-30 p.m. He denied the suggestions put by the defence in regard to the innocence of the accused. P.W.4, Ahmad Jalil Raja, complainant/ Investigating Officer supported his complaint details of which have already been given above. He further deposed that he deposited the case property with Muhammad Sarwar, Moharrir/H.C. (P.W.1), on the same day i.e. 24-5-1999, for safe custody, in the Malkhana and during the investigation, he produced Muhammad Iddrees Butt along with other accused on 3-6-1999 in the Court of Mr. Irfan Qadir, Illaqa Magistrate, Lahore (P.W.5), where confessional statement of Muhammad Iddrees Butt (Exh.P.F.) was recorded under section 164, Cr.P.0 and during the interrogation, Muhammad Iddrees But led to the recovery of 2 Kg. Of heroin, 680 grams Charas and 280 grams Opium regarding which a separate case F.I.R. No.16 of 1999 was recorded against him. In the cross-examination, he denied the suggestions that he had met Muhammad Iddrees Butt in Saudi Arabia while he was performing Hajj, that thereafter he met him on 10-5-1999 in the office of A.N.F., Lahore, that he extended an offer to him to become an informer for Sialkot Region, that he threatened him to involve him in narcotics cases in case he refused to become an informer of A.N.F., that he (Muhammad Iddrees Butt) got published an appeal in Sialkot Post dated 8-5-1999 to 15-5-1999 and volunteered that the accused had fabricated this record (publication) after his arrest. He further denied the suggestion that news items in regard to the abandoned Carry Van and the raid at the house of MuhamMad Iddrees Butt were published in Sialkot Times dated 16-5-1999 to 31-5- 1999 and volunteered that these news items were fabricated by the accused persons after their arrest.
Similarly, he denied the suggestion that an appeal was published in Inkaar Weekly dated 8-5-1999 to 14-5-1999 in regard to abandoned Carry Van and volunteered that these news items were got fabricated by the accused after their arrest and that these news items came to his knowledge two months after the arrest of the accused persons and he did not publish rebuttal of said news in any newspaper. He further stated that Abdul Qayyum, Editor, lnkaar Newspaper, volunteered to make a statement under section 164, Cr.P.C., he met him for the first time in the Court of Illaqa Magistrate, Mian Ghulam Hussain, when his statement under section 164, Cr.P.C., was recorded, admitted that aforementioned Abdul Qayyum was neither a cited witness nor accused of this case and as the challan had already been sent to the Court, therefore, the factum of statement of Abdul Qayyum, under section 164, Cr.P.C. Was not brought on the record. He admitted that Muhammad Iddrees Butt accused had moved a complaint against him and his superior Officers to S.H.O. Uggoke, Sialkot and that he was Incharge of Police Station, A.N.F., Lahore. He denied the suggestion that any Magistrate, who does not accept the illegal terms of A.N.F., is put into trouble and that Ch. Muhammad Ismail and Dr. 'Waqar Hussain,, MICs, had been arrested by A.N.F. At his instance as they had refused to act illegally. He further admitted that he had not written the statements of Abdul Qayyum Editor, Weekly Inkaar and Arshad Ehsan Elahi, Editor, Weekly Sialkot Post and Sialkot Times. He explained that he had hot associated any public person in the recovery proceedings, as nobody was willing to become witness in the instant case. Further admitted that the Carry Van was not in working condition and that it was toe chained from Sialkot to Lahore and that he did not report the incident of recovery of heroin at Police Station Kotwali, Sialkot, within whose jurisdiction Carry Dabba was taken into possession. It was also admitted that Major Abdul Rab was head of the raiding party, who was neither complainant nor a witness in the present case. Further admitted that Muhammad Riaz and Abdul Khaliq accused were searched but no recovery was effected from their possession and that lftikhar Hussain Shah and Asad Ullah, A.S.-Is., had made a statement before him during the course of investigation of this case that they had come to the place of occurrence for making the arrest: of drug smugglers and that they had been falsely implicated in the present case and that they had stated that on the day of occurrence, Iftikhar Hussain A.S.-I.
And Muhammad Riaz, Constable, had attended the Court of Ch. Jamil Ahmad, Magistrate Section 30, Sialkot, in connection with their evidence in case F.I.R. No.2 of 1997 of Police Station, Civil Lines and similarly, Riaz accused had also stated before him to same effect. He denied the suggestions put to him by the defence in regard to the innocence of the accused.
9. P.W.5, Mr. Irfan Qadir, Judicial Magistrate/Illaqa Magistrate, A.N.F. Lahore Cantt, stated that on 3- 6-1999, Ahmad Jalil Raja, Investigating Officer of case F.I.R. No.15 of 1999, produced before him Muhammad Iddrees Butt at 1-00 p.m, for recording his statement under section 364, Cr.P.C. And at that time other accused of this case were also present in the Court, he turned out whole of the staff of A.N.F. From the Court room before recording his statement and explained to the above named accused that he was not bound to make any confessional statement and in case he made the same, it could be used against him and further time was also given to him to think over it and after about half an hour, when asked, the accused agreed to make the statement voluntarily without any pressure or inducement, whereupon his statement (Exh.P.F.) was recorded and read over to him, his co-accused cross-examined him, Muhammad Iddrees Butt, after hearing and understanding his statement, put his signatures as Exh.P.F./1 and the co-accused of the maker of the statement, also put their signatures as Exh.P.F./2, Exh.P.F./3, Exh.P.F./4 and Exh.P.F./5. This witness also recorded the certificate at the end of the statement as required under section 364, Cr.P.C. In the cross-examination he stated that he cannot recall if the accused made any complaint of torture before him or not and denied the suggestion that the accused person had made a request for their medical check-up. He admitted that he did not record, in the proceedings, that the handcuffs of the accused had been removed. He further stated that he directed the other accused to separately cross-examine Muhammad Iddrees Butt. He admitted that he had not recorded specifically in the proceedings that A.N.F. Had been sent out of the Court room. He denied the suggestion that Muhammad Iddrees Butt got published news against him and because of this grudge he, in collusion with the A.N.F., had forged this statement under section 164, Cr.P.C. He admitted that he did not record in his proceedings that the accused will not be given in police custody and will be sent to Jail after recording of his statement.
10. The summary of the, statement given by Muhammad Iddrees Butt before P.W.5 is as follows:-- ' He stated that he deals in the business of sports, his brother Mohsin was often apprehended by the police as he used to take heroin and he (Muhammad Iddrees Butt) in this connection, used to visit police station quite often. He became acquainted with accused Asad Ullah, Iftikhar Hussain Muhammad Riaz and Abdul Khaliq in 1993/94 and all of them became involved in the' narcotics trade at a small level and the heroin, involved in the present case, was also managed by them through some Pathans and he was informed by these police officials that he should contact them as the heroin had arrived and on the same day when he reached near Railway Station, the raid was conducted and all of them got apprehended by the police.
' The Court summoned Abdul Qayyum, Editor, Weekly Inkaar, Sialkot and Arshad Ehsan Elahi, Editor, Sialkot Time and Sialkot Post, as C.W.1 and C .W .2 .
12. C.W.1, Abdul Qayyum, Editor, Weekly Inkaar, stated that the above named newspaper, though weekly, this mostly published on fortnightly basis. The Weekly Inkaar for the period 8-5-1999 to 14- 5-1999 was produced as Exh.P.C./1. He went on to state that Issues Nos.37 and 38 (Exh. P.C.3) were published on 7-4-1999 and thereafter Issues Nos.39 and 40 were published for the period from 15- 5-1999 to 21-5-1999 (Exh. P.0 ./2) and no issue was published for the period from 8-5-1999 to 14-5- 1999. He further stated that he got recorded his statement under section 164, Cr.P.0 (Exh. P.C.) before the learned Maga Magistrate on 18-9-1999. He admitted in the cross-examination that Exh.P.C./2 was published by him for the period, from 15-5-1999 to 21-5-1999 and the news about the abandoned Carry Van at Taxi Stand and the raid of the Anti Narcotics Force were published in this issue. He denied the suggestion that the appeal of Hajji Muhammad lddrees Butt was published in the weekly in Issue No.38 (Exh.P.C./1) for the period from 8-5-1999 to 14-5-1999. He further stated that he cannot say that from which press the publication for the period from 8-5-1999 to 14-5-1999 (Exh. P.C./1) ,was got printed and admitted that he did not publish the rebuttal of Exh.P.C./1 in any newspaper.
13. The summary of the statement of C.W.1, Abdul Qayyum, (Exh.P.C.) under section 164, Cr.P.0 before Mian Ghulam Hussain, Judicial Magistrate Section 30, Lahore, on 18-9-1999, is as follows: ' He stated that on 4/5-6-1999, Arshad Ehsan Elahi, Editor, weekly Sialkot Times, came to him and he gave him two news (photo copies Marks-A and B) at the instance of Muhammad Iddrees Butt, signed by Muhammad Iddrees Butt on 20-5-1999 and requested him to publish these news in his Issues Nos.39/40 for the period from 15-5-1999 to 21-5-1999 of Weekly Inkaar, which was yet to be published and as Iddrees Butt and Arshad Ehsan Ellahi used to get published various news through him and also used to oblige him by giving him advertisement business, therefore, he in good faith published the two news Marks All and B/1 regarding raid of Anti-Narcotics Team and the abandoned Carry Van at the Taxi Stand in Editions Nos.39/40, which was printed and distributed in the first week of June, 1999. He explained that in routine, their newspaper is published one/two weeks latter than the date given in the paper and that news in regard to the present occurrence of 24-5-1999 was published in his Issues Nos.41/42, which is Mark-C and that Issue 4o.38 for the period from 8-5-1999 to 14-5-1999 carrying the appeals of Muhammad Iddrees Butt to the President of Pakistan, Prime Minister etc. (Mark-D) is absolutely bogus and it was not published by him and in fact it was got published by Mudassar Butt brother of Iddrees Butt in collusion with Arshad Ehsan Elahi to show Iddrees Butt as innocent.
14. C.W.2, Arshad Ehsan Elahi, Editor, Sialkot Times and Sialkot Post, stated that he published weekly Sialkot Times from 16-5-1999 to 21-5-1999 (Exh.P.C./4) and Sialkot Post from 8-5-1999 to 15-5-1999 (Exh.P.C./5) and in Sialkot Times, the news regarding abandoned Carry Van and an unsuccessful raid at the house of Muhammad Iddrees Butt, were published and in Sialkot Post the appeals of Muhammad Iddrees Butt were published. In the cross-examination, he admitted that in Exh.P.C./4 and Exh.P.C./5, the date of printing is not recorded and further admitted that some of the past news items are also published in the subsequently printed issues. He admitted that the cases of fraud, forgery and impersonation were registered against him but he was acquitted in those cases.
15. The Prosecutor gave up P.Ws., Nasir Aziz, S.-I. And Muhammad Sarwar Bhutta, S.-I. As being unnecessary.
16. The appellant, Muhammad Iddrees Butt, answered question No.5, that why this case against him and that why the P.Ws. Have deposed against him, as follows:-- "I have no concern with the recovery of narcotics. I am a social and political person at Sialkot. I contested the Elections of M.P.A. In the year 1988. I performed Hajj, twice. I hate dealing in narcotic drugs. I deal in sports manufacturing and is running shop of sports with the name and style of Idress Sports at Sialkot. I am an Income Tax Payee and earns my livelihood by way of hard labour in the manufacturing of sports goods. I went to perform Hajj in the year 1999. I was staying at Maktab No.14 whereas Raja Ahmad Jalil, D.S.P., Narcotics also went to perform Hajj in the year 1999 and was staying at Maktab No.17, which was quite adjacent to Maktab No.14. We became friends at Makkatul Mukarrama and used to sit together daily for hours. I was informed by Raja Ahmad. Jalil regarding his departure from Makkatul Mukarrama to Madinatul Munawra and also regarding his departure to Jeddah. Due to our intimacy with each other, I was being informed about the departure of Raja Ahmad Jalil. He had been informing me on telephone. On 10-5-1999, Raja Ahmad Jalil asked me to meet me at his office of A.N.F., Lahore. So I, in good faith, visited him in the said office where he asked me to become an informer regarding the drugs sellers for Sialkot, I being the social man refused to become the informer. I was threatened by Raja Ahmad Jalil to be involved me in criminal cases if I refused to become the informer. I left the office of A.N.F. On the said date and came to Sialkot where I got published an appeal to the President of Pakistan etc. In Haftroza Sialkot Post commencing from 8th May to 15th May, 1999 and Haftroza Inkaar commencing from 8th May to 14th May, 1999, copies of which have already been placed on record. I have also produced the witnesses regarding the said news in this Honourable Court which has been examined as C.W.1 and C.W.2 and they have admitted the publication of appeal by me in the said newspapers regarding the conduct of Raja Ahmad Jalil and other officials of A.N.F. On 19-5-1999, an illegal raid was conducted at my house in Sialkot by the officials of A.N.F. Including Raja Ahmad Jalil, D.S.P. But nothing was recovered from my house. The officials of A.N.F., however, took away Rs.50,000 and other precious articles including documents pertaining to Insurance, Sports and Registered Sale- deed and my Identity Card. This matter was reported in Haftroza Inkaar commencing from 15-5- 1999 to 21-5-1999 and Sialkot Times commencing from 16-5-1999 to 31-5-1999, copies of which have already been placed on record. I also gave an application to the S.H.O. Police Station, Oggoke.
Copy of which has already been given in evidence. Later on, lot of applications were given to high ranking police officers for taking action against the officials of the A.N.F. For conducting illegal raid at my house on 19-5-1999, but all in vain.
' I was arrested on 24-5-1999 from my house, search was made in the house, but nothing was recovered but due to my refusal of becoming an informer regarding the drug sellers at Sialkot, I was falsely and maliciously involved in the instant case. The story of the prosecution is very weak and unbelievable as all the witness belonging to A.N.F. And nobody from the vicinity where my house is existing was produced as a witness regarding so-called recovery. Had the story been true.
Somebody should have been introduced as a witness from the public sector. Moreover, the case of the prosecution is that Carry Dabba No.ADB-1888 was brought from Sialkot to Lahore in toechin condition and was not in workable condition. It was also published in the newspaper Haftroza Inkaar and Sialkot Times produced in evidence that the same was taken into possession by the A.N.F. While standing at some lonely place on 19-5-1999. I was made a victim in the instant case at the behest of A.N.F. D.S.P. Raja Ahmad Jalil and his companions who belong to A.N.F. Nothing was recovered from my house and the place mentioned in F.I.R. 16 of 1999. The evidence of the prosecution is discrepant regarding the place where from recovery was made. So no reliance can be placed upon the testimony of the witnesses who are bound to obey the command of Raja Ahmad Jalil. The Head of raiding party was not cited as a witness in the instant case which also casts doubt about the registration of present case. I am totally innocent in the instant case."
17. The appellant, Syed Iftikhar Hussain, answered question No.5 that why this case against him and that why the P.Ws. Have deposed against him, as follows:-- "I have been falsely and maliciously involved in the instant case. Nothing was recovered from me. I was present in the Court of Mr. Jamil Ahmad, Magistrate Section 30, Sialkot in connection' with my evidence in case F.I.R. No.2 of 1997 of Police Station, Civil Lines, Sialkot. Muhammad Riaz constable was also with me as his evidence was to be recorded, in case F.I.R. No.419 of 1998 of Police Station, Cantt., Sialkot. We remained there up to 3-00 p.m. Asadullah Khan, A.S.-I. Got the information that some drug dealers are coming to Sialkot and they are to be arrested, I could not go to C.I.A. Up to 3-00 p.m. I was arrested along with Muhammad Riaz, Constable from the Court premises of Sialkot and nothing was recovered from our possession and we were brought to Lahore. I made a statement before the Investigating Officer that I am absolutely innocent and in fact I wanted to arrest the drug sellers along with Asadullah Khan, A.S.-I., but wrongly apprehended by the raiding party, that so-called Carry Dabba ADB-1888 was found standing at a lonely place on 19-5-1999 regarding said standing of the Carry Dabba the news had appeared in Haftroza Inkaar and Sialkot Time. So false and fabricated case has been made against me. I have unblemished service of Police Department for 29 years. During this time, I was never involved in any criminal case. Sometime earlier to the registration of this case, Raja Ahmad Jalil had asked me to help Muhammad Rafiq drug seller, but on my refusal he became vindictive towards me and Asadullah Khan, A.S.-I. And we both have been falsely involved in the instant case along with two constables namely Muhammad Riaz and Abdul Khaliq posted with us. Copy of the evidence given by me in the Court of Mr. Jamil Ahmad, Magistrate Section 30 is appended herewith as annexure-D-4 and copy of the departure from police station regarding the evidence is produced as Annexure-D5.
' I have been falsely involved and I have nothing to do with the criminal case referred to above."
18. The appellant, Asadullah Khan, answered question No.5, that why this case against him and that why the P.Ws. Have deposed against him, as follows:-- "I belong to police department and is working there as A.S.-I. On 24-5-1999 I was posted as A.S.-I., CIA, Sialkot. I had information that some Pathans were coming with heavy narcotics in Sialkot. I contacted Syed Iftikhar Hussain, A.S.-I. Posted at CIA but he was not available at CIA and had gone to give evidence in case F.I.R. No.2 of 1997 along with Muhammad Riaz, Constable in the Court of Ch. Jamil Ahmad, Judicial Magistrate, Section -30. I sent message to him that a raid to be conducted upon the Pathans but he got late upto 3-00 p.m. And remained in the Court of Ch. Jamil Ahmad, Magistrate afore-mentioned. I was waiting for him and was sitting in a Hotel and was taking meal when all of a sudden, Raja Ahmad Jalil and his companions A.N.F. Arrested me and Abdul Khaliq constable from the said hotel and then proceeded to . Arrest Syed Iftikhar Hussain, A.S.-I. And Riaz Ahmad constable from the premises of Sessions Court, Sialkot where the Court of Mr. Jamil Ahmad Magistrate was working. We four were arrested and were brought to Lahore without assigning any reason. Then we were sent to judicial custody. I made a statement before the Investigating Officer regarding my innocence. I have unblemished service in the Police Department. I have arrested lot of persons dealing in narcotics even prior to this incident and cases of huge recovery of narcotics were registered against them. Copy of F.I.R. In which I am the complainant, is being produced before this Honourable Court as Marked A and B. I am innocent in the instant case. Nothing was recovered from my possession at the time of raid. No private person was associated with the raiding party. I was merely arrested on suspicion and was booked in the instant case without any plausible reasons. My whole career of service has been spoiled by the officials of A.N.F. Who maliciously involved me in the instant case. Raja Ahmad Jalil is the complainant and also the Investigating Officer in the instant case. Other officials of A.N.F. Also have been produced as witnesses against me. I am totally innocent in the instant case and has nothing to do with the dealing of narcotics. The Carry Dabba ADB-1888 was found standing at a lonely place on 19-5-1999 and regarding that news had also appeared in Haftroza Inkaar commencing from 15 to 21st May, 1999 and also Sialkot Times commencing from 16-5-1999 to 31-5-1999. No rebuttal was made by the raiding party regarding the publication of the said news, in the said newspaper. I have nothing to do with the alleged recovery. The same has been planted upon me in order to achieve illegal design because prior to this occurrence, Raja Ahmad Jalil had asked me to help narcotics dealer namely Muhammad Rafiq, arrested by me, but due to my refusal, Raja Ahmad Jalil became vindictive and falsely involved me in the said case."
19. The appellant, Abdul Khaliq, answered question No.5, that why this case against him and that why the P.Ws. Have deposed against him, as follows:-- "I was arrested while sitting alongwith Asadullah Khan, A.S.-I. In a Hotel by A.N.F. And brought to Lahore. Nothing was recovered from my possession and I have been falsely involved in the instant case. I have unblemished service of Police Department of 9 years. During this time, I was never involved in any criminal case."
20. The appellant, Muhammad Riaz, answered question No.5, that why this case against him and that why the P.Ws. Have deposed against him, as follows:-- "All the P.Ws. Belong to office of A.N.F. They are bound to obey the command of their high ranking police officers. I was not present at the place of occurrence. I was arrested from the premises of Court of Ch. Jamil Ahmad where I remained present in connection with my evidence in case F.I.R.
No.419 of 1998. Copy of my evidence is being produced herewith as Annexure-D 6. I was arrested along with Syed Iftikhar Hussain, A.S.-I., who was also present in the premises of the Court. Nothing was recovered from my possession. I am not involved in this case in any manner. I have unblemished service of Police Department of 12 years."
21. All the accused opted not to appear as their own witnesses under section 340(2), Cr.P.C. And did not produce any other evidence in defence. We have heard the learned counsel for the parties and have also seen the record with their able assistance.
23. It is submitted by Malik Saeed Hassan and Ch. Abdul Rashid, Advocates, representing the appellant, Muhammad Iddrees Butt, that Muhammad Iddrees Butt has been falsely involved in the present case due to the enmity with Investigating Officer, Ahmad Jalil Raja as he had refused to become an informer, that the relevant Police Station, in whose jurisdiction the present raid was conducted, was not intimated by the raiding party nor any report was recorded in the rozenamcha of that police station, that the raid was conducted under the supervision of Major Abdul Rub but he neither lodged the present complaint nor appeared as a prosecution witness, which shows that the prosecution story is mere a fabrication, that the prosecution story is full of contradictions and inconsistencies, inasmuch as, Shaukat Ali, H.C. (P.W.3) failed to give the number of vehicles used in the raid, also failed to give the names of the Drivers of those vehicles and names of the members of the raiding party, which leads to the conclusion that P.W.3 did not participate in the raid, that Exh.P.A. (the recovery memo.) bears the F.I.R. No.15 of 1999 in the same pen and in the same hand writing, which shows that the F.I.R. Number was recorded at the spot at the time of preparation of Exh.P.A., which is not possible and it leads to the conclusion that Exh.P.A. Is a fictitious document, that Shaukat Ali (P.W.3) stated that he signed the recovery memo. (Exh.P.B.) but he has not stated anything about Muhammad Sarwar Bhutta, S.-I., the other attesting witness, that P.W.4, Ahmad Jalil Raja, did not rebut the news items published in the newspapers, that it has not been explained by the prosecution that in what circumstances Investigating Officer, Ahmad Jalil Raja got recorded the statement of C.W.1, Abdul Qayyum, under section 164, Cr.P.C., whereas said Abdul Qayyum was neither a P.W. Nor a D.W. Of this case, that P.W.4, Ahmad Jalil Raja, was the complainant and he in a mala fide manner, also became an Investigating Officer of this case and he was biased, so much so, that he got recorded the statement of C.W.1, Abdul Qayyum, without any reason after the submission of challan just to ensure the conviction of Muhammad Iddrees Butt, that the Investigating Officer did not perform the functions of collection of evidence honestly and fairly, that the Carry Van was not in a working condition, which shows that the story that at the time of occurrence it was being driven by Muhammad Iddrees Butt, is a concoction, that the keys of the Carry Van were not available as they were not taken into custody by the I.O. And this also shows that the prosecution story, is a fabrication and the Carry Van was taken into custody in an abandoned position from a road side and it was not being driven, by anyone, that Police Station, A.N.F., Lahore, had no jurisdiction to investigate a crime committed at Sialkot, that no entry in Rozenamcha with regard to their proceeding to conduct a raid at Sialkot was produced in evidence, that the head of the raiding party, to whom the secret information was conveyed, did not appear as a witness, that as per the statement of P.W.1, Muhammad Sarwar, only 32 samples of heroin weighing five grams each (total 160 grams) were handed over to him by the Investigating Officer and there is no explanation in regard to the rest of the heroin weighing more than 30 Kgs.
And thus, there is no evidence of recovery of rest of the heroin, hence in the alternate, even if the prosecution story is believed, at the most it is a case of recovery of 160 grams of heroin from the three accused, which is punishable under section 9(a) of Control of Narcotic Substances Act, 1997, that the statement of P. W.1, under section 161, Cr.P.C., was admittedly recorded on 25-5-1999 and not on 24-5-1999 when the samples were handed over to him, that P.W.2, Abdul Ghafoor Constable was also inimical towards Muhammad Iddrees Butt as his name also admittedly figured in the application dated 20-5-1999 given by Muhammad Iddrees Butt to the S.H.O., Police Station, Uggoke against Ahmad Jalil Raja and others, that P.W.3 Shaukat Ali, H.C., was not present at the time and place of occurrence, he admitted that on that day he remained on duty in Lahore from 8-00 a.m.
To 3-00 p.m., his name was not mentioned as a witness in the site plan (Exh.P.D.), that Investigating Officer, admitted in the cross-examination that the place of occurrence was a thickly-populated area and at the time of raid when Carry Van was taken into possession many peoples were roaming around in the vicinity but none of them was associated in the alleged recovery proceedings, that the Carry Van is admittedly a private vehicle and there is no mention of its owner, that the story of so-called confession purported to be made by Muhammad Iddrees Butt before P.W.5, Irfan Qadir, Magistrate, is a concoction and forgery committed by the Investigating '
Officer in collusion with the above-named Magistrate, that even otherwise the so-called judicial confession was not recorded in accordance with law, it does not mention the taking off the handcuffs of Muhammad Iddrees Butt and does not mention of assurance given by the Presiding Officer that the accused'will not be handed back to the police and will be sent to Jail and thus it cannot be relied upon, that even otherwise this piece of evidence (the judicial confession) was not put to Muhammad Iddrees Butt at the time of recording his statement under section 342, Cr.P.C., and, therefore, the same cannot be relied upon by the prosecution and that it stands established through the news published in newspapers that Carry Van was lying in abandoned condition on the road side near Taxi Stand at the time when raid was conducted and the news items have been proved by C.W.2, Arshad Ehsan Elahi. The learned counsel have also placed their reliance on Air Marshal (Retd.) Waqar Azim and 3 others v. The State 2002 Yearly Law Reporter 1811; Azhar Hussain v. The State PLD 2003 Lahore 217; Munawar Hussain Manj v. The State 2003 YLR 1035; Ashiq Hussian v. The State 1993 SCMR 417; Asif Ali Zardari and another v. The State PLD 2001 Supreme Court 568; Muhammad Khalid v. The State 1998 PCr.LJ 808; Muhammad Akram Khan v. The State 1996 PCr.LJ 843; Hamzo and 2 others v. The State 1972 PCr.LJ 478; Aijaz Ali v. State 2001 YLR 1493 and Hakim Ali v.
State 2001 PCr.LJ 1865. Reference has also been made to Rules 7 and 7-A of Chapter 13 of Volume III of Rules, and Orders of the Lahore High Court, Lahore.
24. In Air Marshal (Retd.) Waqar Azim and 3 others v. The State (supra), a Division Bench of this Court, while considering the provision of section 342, Cr.P.C., reiterated the settled law that any circumstance figuring in the prosecution evidence, which is sought to be used by a Court of law for basing conviction of an accused thereon, must be put to the accused to obtain his explanation and if such legal requirement is not fulfilled, then the conviction is vitiated and the accused is entitled to acquittal.
' Similarly, in Azhar Hussain v. The State (supra), it was held that piece of evidence not put to the accused in his statement recorded under section 342, Cr.P.C. Cannot be considered against him.
In Munawar Hussain Manj v. The State (Supra), it was held by a Division Bench of this Court that the judicial confession of co-accused not recorded by Magistrate in accordance with legal formalities cannot be made basis of conviction of the accused.
In Ashiq Hussain v. The State (supra), the Honourable Supreme Court reiterated, that defence Jolea is to be considered in juxtaposition with prosecution case and in the final analysis if defence plea is proved or accepted then prosecution case would stand shattered and discredited. If defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case that would be enough but in case it is not established no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false.
In Asif Ali Zardari and another v. The State (supra), it was held that "Bias" is synonymous with "partiality" and bias would vitiate judicial proceedings if such circumstances were created or brought about by the Judge as would rob him of the confidence that a litigant may have in the Judge.
' In Muhammad Khalid v. The State (supra), a learned Single Judge of Peshawar High Court, reiterated the settled law that if defence plea is not established at all, no benefit will accrue to the prosecution on that account and its duty to prove its case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false. In Muhammad Akram Khan v.
The State (supra), the accused was acquitted due to the authenticity of the allegation of enmity with the complainant.
In Hainzo and 2 others v. The State (supra), it was found that the articles were sealed and packed not at place and time of E recovery but at police station and it was, therefore, held that such recovery was doubtful.
In Aijaz Ali v. State (supra), the prosecution did not produce the entry by virtue of which the police party left the police station for the place of occurrence, before the trial Court. A Division Bench of Sindh High Court considered that such entry was a genuine document and non-production of said document vitiated the entire trial.
' In Hakim Ali v. State (supra), the recovery witnesses (Excise officials) stated that they left for patrol after making an entry about it in "rozenamcha", but na such entry was produced before the trial Court. The Court took notice of this fact and other circumstances like the absence of independent witnesses and contradictions in the statements of the recovery witnesses, for giving benefit of doubt to the appellant.
' Rules 7 and 7-A of the Chapter 13 of Volume III of Rules and Orders of the Lahore High Court, Lahore, read as under:-- "7. Accused who has made a confession should not be kept in Police custody, but should be kept in Judicial lock-up separate from other prisoners.---An accused person who had made a confession before Magistrate should be sent to the judicial lock-up and not made over to the police after the confession has been recorded. If the police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required, and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application. If an accused person, who has been produced before a Magistrate for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to police custody.
7-A. When remanding to the lockup an accused person who has made a confession, the Magistrate shall record an order for him to be kept separate from other prisoners as far as may be practicable."
25. Mr. Zahid Hussain Bukhari, Advocate, has argued the cases of the rest of the accused namely Asadullah, Iftikhar Hussain, Muhammad Riaz and Abdul Khaliq.
26. He, while making submissions for the accused (former police constables) Muhammad Riaz and Abdul Khaliq, argued that nothing was recovered from these two accused, there is nothing on the record to show that they had knowledge that there were drugs in the Carry Van, there is no evidence that these two accused had conspired with the remaining accused, that there is nothing on the record that they had provided any assistance to the other, accused, that mere riding a rnptorcycle on a road is not an offence, that there may be suspicion but suspicion alone, however, strong, cannot justify any conviction and that even after their arrest, they did not lead to the recovery of narcotics of any type.
27. Mr. Zahid Hussain Bukhari, Advocate, while arguing the case of former A.S.-Is., Asadullah and Iftikhar Hussain, submitted that the case of these two accused is distinguishable from the case of accused Iddrees Butt, as latter was allegedly found at the driving seat, the first plea of these two accused before the complainant was that they had come to the place of occurrence to make the arrest of smugglers, on this day they had attended the Court of Magistrate Section 30, Jamil Ahmad, the prosecution story that the heroin was recovered by these two accused from two Pathans and was kept by them along with Iddrees Butt accused, for its distribution amongst themselves, is without any evidence, on the day of occurrence Iftikhar Hussain remained in the Court of Magistrate Section 30 till 3-00 p.m. The story that the drugs were found under the feet of the accused is absurd and is not believable because when sufficient space under the seats and on the rear fourth seat was available, there was not need to put the bags of drugs under their feet, it is a malicious concoction to connect these two appellants with the alleged crime, Carry Van was lying abandoned since 19th of May, it was not in working condition and for this reason it was admittedly toed to Lahore, C.W.2 flashed the news of abandoned Van on 19th of May, the keys of van were not produced in evidence and this also shows that the van was found abandoned and was not in working condition, during recording of statement of the Investigating Officer, van was toed to Court premises, it was not in working condition, there is nothing on record that who brought the van to Police Station, A.N.F., Lahore, no evidence was produced that who drove this vehicle from the place of occurrence to the house of accused Iddrees Butt, defence plea is that the drug paddlers had entered Sialkot and if the prosecution version and the defence version are put in juxtaposition, it would show that on the day of occurrence, drugs had already entered Sialkot and they were planted on the accused, the police officials had the information of availability of drugs in Sialkot, they recovered the same from the abandoned van and planted the same on these accused, bias of the Investigating Officer is apparent, he took C.W.1 to Court of the Magistrate to destroy the defence plea after the submission of challan, C.W.1 was neither the witness nor an accused, the purpose of his production was to destroy the defence case, this shows the malice and bias of the complainant/Investigating Officer, that's why the law says that complainant should not be the investigator as it can prejudice the case of accused as happened in the. Present case, no independent witness was cited, though they were admittedly present, as it was a busy road, in the present case independent recovery witnesses were required as enmity and bias was alleged against the Investigating Officer because previously the accused had refused to oblige the Investigating Officer, even otherwise, the Investigating Officer did not give the names of the witnesses available at the place of occurrence, who had allegedly refused to join the investigation, the above-mentioned shows that the trial against the accused was merely a mockery, these two accused were harsh on drug traffickers, they caused arrests of number of paddlers, (Reference has been made to Mark A and B, copies of F.I.Rs. Lodged by them against various accused of narcotics ), they were recommended for promotion, non-deposit of remaining heroin in the Malkhana makes the recovery doubtful, at the most 160 grams of the heroin (total of all 32 sample parcels) will be deemed to have been recovered from the accused, the high ranking officials, who participated in the alleged raid, ought to have been produced as witnesses but only the lowest in the rank i.e. a Head Constable was produced to corroborate the complainant/Investigating Officer, P.W.3, Shaukat Ali Head Constable, was not present at the spot because he could not tell the names of the drivers of the officials vehicles, he also could not tell the names of other officials sitting in other vehicles, he could not even tell the registration numbers of officials vehicles, on the day of occurrence, at the relevant time he was marked present in the office of Police Station, A.N.F., Lahore, the first plea of these two accused that they were innocent, was substantiated by Exh.D.4, which shows that the statement of accused Iftikhar Hussain, in another case F.I.R. No.2 of 1997, dated 2-1- 1997, registered at Police Station, Civil Lines, Sialkot, was recorded as P.W.2 by Magistrate Section 30, Sialkot, on 24-5-1999, this fact is also stated by this accused in his statement under section 342, Cr.P.C., in answer to question No.5, the peak time of recording evidence in the lower Courts is 1 O'clock, therefore, this accused was present in the Court of Magistrate Section 30, Sialkot, at the time when the occurrence allegedly took place in the present case C.W.2, supported the defence version that Carry Van was taken into possession prior to the occurrence, the prosecution did not produce any evidence showing the ownership of Carry Van, the news item also shows that nothing was recovered from the house of Iddrees Butt, the prosecution has taken two stands, one that Iddrees Butt was arrested from the spot and the other is that he was arrested from his house, C.W.1 did not withstand the pressure of the complainant whereas C.W.2 withstood the pressure and supported the defence version, the possible argument from the prosecution side that such a huge quantity of heroin cannot be planted, is not valid because there is evidence on the record that smugglers had entered Sialkot and a huge quantity of heroin was already available, the complainant/Investigating Officer is an interested witness, he wanted to achieve the conviction of all accused by all means, site plan (Exh.P.D.) does not show the names of the accused and the points of presence of the accused have also not been mentioned therein, the prosecution has failed to prove its case beyond reasonable doubt and, therefore, the accused are liable to be acquitted, in the alternate, at the most, it is a case of conviction under section 9(a) of Control of Narcotic Substances Act, 1997, because in total only 160 grams of heroin will be deemed to have been recovered from the three accused, which comes to about 53 grams, per accused and if the Court holds that it is a case falling under section 9(c) of Control of Narcotic Substances Act, 1997, then the proviso to the same is relevant, which shows that if the recovery is beyond ten kilograms of narcotics, minimum punishment is imprisonment for life meaning thereby that up to 10 Kgs. Of recovery, the Court may award lesser punishment. The learned counsel has also placed his reliance on Muhammad Khalid v. The State (supra) State v. Tariq Mahmood 1987 PCr.LJ 2173' (FSC) and Sher Muhammad v. The State 1986 PCr.LJ 1720 (FSC).
28. In Muhammad Khalid v. The State (supra), the Investigating Officer himself was a complainant.
It was held by a learned Single Judge of Peshawar High Court that such fact, by itself, had rendered the very trial of the case a sheer mockery.
' In State v. Tariq Mahmood (supra), it was found that the place of occurrence was a thickly- populated area but no witness from public was produced and there were material contradictions in the statements of prosecution witnesses. The Federal Shariat Court held that the statements of prosecution witnesses were not ringing true and were not confidence-inspiring and the defence version appeared to be more plausible and the conviction could only be based on evidence which was beyond shadow of doubt. A principle of Islamic Jurisprudence was also reiterated that it is better to acquit guilty persons than to punish an innocent and it is a guiding principle for safe administration of justice.
' In Sher Muhammad v. The State (supra), the accused was acquitted due to lack of evidence connecting the accused with the commission of the offence as alleged.
29. Ch. Muhammad Suleman, learned Additional Advocate-General/Special Prosecutor A.N.F., while vehemently opposing the appeals, has submitted that there is no distinguishing feature between the case of former A.S.-Is. Asadullah and Millar Hussain with the case of Muhammad Iddrees Butt, all the three associated with each other, in terms of section 14 of Control of Narcotic Substances Act, 1997, wrong arguments have been submitted in regard to the lack of jurisdiction of Police Station, A.N.F., Lahore, at Sialkot, under section 6(1) of Anti-Narcotic Force Act, 1997, the members of the Force, for the purpose of any inquiry or investigation under the Act, throughout Pakistan, have such powers, including the powers relating to search, arrest of persons and seizures of property, as a police officer has in respect of offences under the Code of Criminal Procedure or any other law for the time being in force and under subsection (9) of section 6 of the above Act, the Force may, in accordance with the law, establish as many police-stations as are required for the efficient functioning of the Force and under the initial Notification, issued by the Federal Government, the Police Station, A.N.F., Lahore, comprised of Lahore Division, Gujranwala Division, Faisalabad Division and Sargodha Division and under the latest Notification dated 12-6-2002, issued by the Federal Government (photocopy produced in Court), the Police Station, A.N.F., Lahore, has been re- assigned and is comprised of Civil Divisions of Lahore and Gujranwala whereas Faisalabad and Sargodha Divisions are assigned to Police Station, A.N.F., Faisalabad, therefore, Police Station, A.N.F., Lahore had the jurisdiction to raid at Sialkot and there was no need to obtain permission from the concerned Police Station at Sialkot or inform it of the intended raid, that wrong objections have been taken in regard to the recovery memo. Exh.P.A., which has been duly signed by the recovery witnesses, including the complainant, the complainant can be the Investigating Officer, there is no bar and it is for the accused to establish the prejudice having been caused bedause of the investigation of the case by the complainant. The learned Law Officer has also placed his reliance on Mst. Ajab Sultana and another v. The State 2003 PCr.LJ 82; Sohrab v. The State 2002 PCr.LJ 344; Sohrab v. The State 2002 PCr.LJ 1402; Jana Gul v. The State 2002 PCr.LJ 1490; Rahim Dad v. The State 2002 PCr.LJ 1506; Ahmad Hassan and another v. The State 2001 SCMR 505; Muhammad Ali and others v. The State and others 1999 SCMR 1957; Sana Ullah v. The State PLD 2002 Lahore 330 and Khawand Bux and 3 others v. The State 1997 PCr.LJ 280.
30. The learned Law Officer, in regard to non-association of any public witness, in the recovery proceedings, has submitted that it has been brought out in the prosecution evidence that nobody was willing to become a witness and even otherwise under section 25 of Control of Narcotic Substances Act, 1997, the provisions of section 103, Cr.P.C. Have been specifically excluded.
31. The learned Law Officer, in regard to the quantum of sentence, has argued that the approach of the Court should be dynamic and in the larger interest of the country. He has also placed his reliance on Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785 and The State through Force Commander, Anti-Narcotics Force, Quetta v. Abdul Qahir PLD 2002 SC 321.
32. The learned Law Officer has further argued that the newspaper cuttings, being relied upon by the defence, are irrelevant, these news were not published in any national daily, these are fabrications, the accused failed to produce any independent defence witness, the accused have failed to prove any enmity of the complainant or the recovery witnesses, with the accused, the defence version of enmity is highly improbable and a concoction, the raiding party consisted of high ranking officials as well and it was not a fake raid, the raid was conducted on the basis of secret information, which materialized in the shape of recoveries, the prosecution witnesses have fully supported the prosecution case, which stands proved beyond any shadow of doubt.
33. In Mst. Ajab Sultana and another v. The State (supra), it was held by a Division Bench of Peshawar High Court that the police officer, who was a witness to the commission of the offence, was not legally prohibited to be a complainant as well as an Investigating Officer in the case so long as it did not in any way prejudice the accused and such fact, by itself, was no ground to deprecate the investigation and vitiate the trial.
' In Sohrab v. The State (supra), it was held by a Division Bench of Peshawar High Court that the police officials deposing as prosecution witnesses had no ill-will or malice against the accused and their evidence cannot be discarded merely on the basis of their being police employees. It was further held that the police officer was not prohibited under the law to be a complainant if he was a witness to the commission of the offence and also to be an Investigating Officer if the accused thereby was not prejudiced in any way.
' Similarly, in Mahmood Khan v The State (supra), also it was held that no legal prohibition existed to the effect that Investigating Officer could not be a complainant, a witness to the commission of the offence and also an Investigating Officer provided that it did not, in any manner, prejudice the accused.
' Similarly, in Jana Gul v. The State (supra), it was held that no legal prohibition existed for police official to be a complainant, a witness to commission of the offence and also to be an Investigating Officer, so long as it did not, in any manner, prejudice the accused.
' In Rahim Dad v. The State (supra) also, it was held that no legal prohibition existed for a police official to be a complainant, a witness to commission of offence and also to be an Investigating Officer so long as it did not prejudice the accused. In Ahmad Hassan and another v. The State (supra), the accused had committed murders of high officials viz. D.I.G. And A.D.I.-G. In collusion with each other. S.P., C.I.A., was the complainant. He also conducted the investigation. The contention that he being complainant in the case was incompetent to be an Investigating Officer was repelled by the Honourable Supreme Court because no prejudice had been caused to the accused in the investigation conducted by him.
In Muhammad Ali and others v. The State and others (supra), it was held by the Honourable Supreme Court that solitary statement of a witness when. Appearing reliable and confidence- inspiring, is deemed sufficient for bringing home guilt of the accused.
' In Sana Ullah v. The State (supra), it was held that a single witness, whose credibility is beyond any doubt, can be relied uppn for recording conviction against an accused. Reliance was placed on Muhammad Ashraf v. The State 1971 SCMR 530.
' In Khwand Bux and 3 others v. The State (supra), it was held by a Division Bench of Balochistan- Quetta High Court that even in a murder case, conviction can be based on the testimony of a single witness, if found reliable by the Court, emphasis being on the quality of evidence and not on its quantity.
' In Munawar Hussain alias Bobi and 2 others v. The State (supra) it was held by the Honourable Supreme Court that:-- "The Courts cannot expect in cases of smuggling of narcotics, the evidence of the nature, which is generally available in an ordinary criminal case, as the persons who indulge in the above nefarious activities are more organized, affluent and influential and, therefore, generally, they manage to cause dents in the prosecution evidence. In such-like cases, which are not only damaging the image of Pakistani nation in the comity of nations, but are making our young generation addicts to narcotics, the Court's approach should' be dynamic and they should overlook technicalities in the larger interest of the country and the public-atlarge. 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."
' In The State through Force Commander, Anti-Narcotics Force, Quetta v. Abdul Qahir (supra), 2 kilograms of Charas was recovered. The trial Court convicted the accused and sentenced him to life imprisonment with fine of Rs.10,00,000. The High Court of Balochistan, Quetta, reduced the sentence to 4-1/2 year's R.I. With fine of Rs.10,000, as State Counsel had consented for reduction of sentence. The Honourable Supreme Court, while granting leave against the judgment, ordered that the acquitted accused shall be lodged in Jail till the decision of the appeal. It was observed by the Honourable Supreme Court that:-- "It has been experienced in number of cases, particularly in which Federal or Provincial Government or other agencies are parties, the learned counsel appearing on their behalf invariably make concession in favour of the opponent without realizing damage being caused to the Federal and Provincial Governments have to suffer considerable damage in terms of money and property as well as in criminal cases where criminals, whose convictions are secured after great difficulty on account of prevailing circumstances where nobody comes forward to make evidence on account of their terror. But at the same time, the Courts, seized with the matter, are equally responsible in accepting such statements because it is their duty to ensure that the concession on behalf of the State is being made lawfully and under the legal authority or otherwise and if Court comes to conclusion that concessional statement is being made to oblige the other side or it is the result of some extraneous consideration or without any legal authority; then the Court is not bound to accept the same. Similarly, there is no cavil with the proposition that discretion vests in the Courts in awarding adequate sentence but it is required to lie exercised judicially and otherwise. Because, in absence of such exercise of powers, the object of awarding sentence to an accused against whom guilt has been established successfully by the prosecution, will be frustrated. It is also to be noted that according to Jurist Salmond "punishment is before all things deterrent, and the chief end of the law of crime is to make the evil-doer and example and a warning to all that are like- minded with him" (Jurisprudence (Edition) at page 111). On perusal of the relevant provision of law, we are prima facie of the opinion that in the instant case, discretion has not been exercised judicially, because if the provisions of section 9( c) are read along with section 9(b), C.N.S. Act, 1997, keeping in mind that 2 kgs. Of Charas was recovered from the possession of respondent, he was not liable to the sentence to the extent of only four and a half years' imprisonment with fine of Rs.10,000."
34. Lengthy arguments were addressed before us from both sides. We have given our anxious consideration to them.
35. The arguments of the learned counsel for the appellants that Police Station, A.N.F., Lahore, had no jurisdiction in Sialkot, have no force. The learned Law Officer has amply demonstrated through his arguments, recorded in para.29, ante, that Sialkot falls within the jurisdiction of Police Station, A.N.F., Lahore.
36. We are of the view that it is not safe to rely on the judicial confession (Exh.P.F.) of the accused/appellant, Muhammad Iddrees Butt. It was not recorded by P.W.5, in accordance with law and the requirements of section 164, Cr.P.C. Were not observed/fulfilled. The handcuffs of the accused were not removed. The police was not sent out of the Court room. The accused was not assured that after recording his statement, he shall not be given in the custody of the police and will be sent to Jail and there is nothing on the record, which shows that after recording of his statement, he was not given in police custody and was sent to jail and even otherwise, particulars of this piece of evidence were not put to accused Muhammad Iddrees Butt at the time of recording of his statement under section 342, Cr.P.C.
37. We also hold that the discrepancies and contradictions pointed out by the learned counsel for the appellants are minor in nature, they are not material and fatal to the prosecution case. Even otherwise, as held by the Honourable Supreme Court in Munawar Hussain alias Bobi and 2 others v.
The State (supra), in such-like cases, the Courts should overlook technicalities in the larger interest of the country and the public-at-large and 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.
38. In our opinion, the case of the appellants, Muhammad Riaz and Abdul Khaliq (the Police Constables) stands on a different footing than the case of the rest of the appellants. Nothing was recovered from these two appellants, there is nothing on the N record to show that they had knowledge that there were drugs in the Carry Van, there is no evidence that these two had conspired with the remaining accused, there is no evidence that they had provided any assistance to the other accused and mere riding on a motorcycle on a road, behind a Carry Van from which the drugs were recovered, is not an offence. It could be a mere coincidence. The suspicion alone, howsoever, strong cannot justify any conviction. We are, therefore, of the view that the trial Court wrongly recorded their conviction and they are entitled to the benefit of doubt and are liable to be acquitted.
39. The defence versions put forward by the appellants, Muhammad Iddrees Butt, A.S.-I., Asadullah and A.S.-I., Iftikhar Hussain, do not inspire-confidence. We have considered the defence plea in juxtaposition with the prosecution case and in our opinion, the defence plea is not established. The newspapers cuttings, being relied upon by the defence, are irrelevant. These news were not published in any national daily. C.W.1, Abdul Qayyum, Editor, Weekly Inkaar, categorically stated that no issue was published for the period from 8-5-1999 to 14-5-1999. This shows that the appellants were trying to fabricate the evidence in their favour. The story of the Carry Van having been found abandoned and the news items in this regard, published in the local newspapers, are merely concoctions and fabrications. We are conscious that no benefit has accrued to the prosecution merely because the defence plea has not been proved and is found to be palpably false and the duty of the prosecution to prove its case beyond doubt is not diminished.
40. The appellants, Muhammad Iddrees Butt, Asadullah and Iftikhar Hussain, were caught red-handed. On 24-5-1999 at about 1-30 p.m., they were present in the Suzuki. Van, bearing Registration No.ADB1888, in the area of Allama lqbal Chowk near Railway Station, Sialkot, and at that time, heroin weighing 32 kilograms was recovered from their possession. The prosecution has examined Shaukat Ali, H.C./P.W.3., who was member of the raiding party and Ahmad Jalil Raja, Complainant/Investigating Officer/P. W .4. Their statements are confidence-inspiring on all the material facts of the case. They were subjected to lengthy cross-examination but nothing favourable to these three appellants came out in the same. They remained consistent. They proved the recoveries from the accused, beyond any doubt. The alleged previous enmity of the Investigating Officer with Muhammad Iddrees Butt has not been established. Even otherwise, it does not appeal to reason that Muhammad Iddrees Butt would be falsely involved in a case of such serious nature with such heavy quantity of heroin merely because Muhammad Iddrees Butt had refused to become an informer for the Investigating Officer. The raid was conducted under the 'supervision of high officials of A.N.F. And the raiding party consisted of a large number of officials and it is not believable that all of them were under the influence of the Investigating Officer and agreed to falsely implicate Muhammad Iddrees Butt and two A.S.-Is.
Namely Asadullah and Iftikhar Hussain. No enmity has been suggested against P.W.3 Shaukat Ali, HC and the other members of the. Raiding party.
41. The argument of the learned counsel for the appellants that since no public witness was associated in the recovery proceedings, therefore, the recoveries are doubtful, has no force. The Investigating Officer (P.W.4) has explained in his statement that he had not associated any public person in the recovery proceedings as nobody was willing to become a witness in the instant case. Even otherwise, under section 25 of the Control of Narcotic Substances Act, 1997, the provisions of section 103, Cr.P.C. Stand specifically excluded.
42. The argument from the appellants' side that the trial stood vitiated because the complainant himself became an Investigating Officer has also no force. A Police Officer, who is witness to the commission of the offence, is not legally prohibited to be a complainant as well as an Iqvestigating Officer in a case, so long as it does not in any way, prejudice the accused and such fact by itself, is no ground to deprecate the investigation and vitiate the trial. This is the settled law. The judgments referred in para 33, above, are on the issue. In the instant case, there is nothing on the record to show that the appellants/accused were prejudiced, in any manner, because the complainant, who was a witness to the commission of the offence, investigated the case.
43. In' view of the above mentioned, the prosecution has proved its case beyond reasonable doubt against the accused/ appellants, Muhammad Iddrees Butt, Asadullah and Iftikhar Hussain, and has failed to prove its case beyond reasonable doubt against the appellants Muhammad Riaz and Abdul Khaliq. (See para.38-ante). The trial Court, therefore, correctly convicted the appellants, Muhammad Iddrees Butt, Asadullah and Iftikhar Hussain, under section 9(c) read with sections 14 and 15 of Control of Narcotic Substances Act, 1997, and incorrectly and unlawfully convicted the appellants Muhammad Riaz and Abdul Khaliq. We are, however, of the view that the sentence of death awarded to the appellants Muhammad Idrees Butt, Asadullah and Iftikhar Hussain are excessive. There is nothing on the record to show their previous involvement in any similar case.
There is po evidence that they had a capacity or means to purchase such huge quantity of narcotics. In this regard, we are guided by the law laid down in Munawar Hussain Manj v. The State 2003 YLR 1035. We are, therefore, of the view that sentence of imprisonment for life will meet the ends of justice.
44. In view of the above -discussion, the appeal of appellants, Muhammad Riaz and Abdul Khaliq (Criminal Appeal No.200 of 2000) is allowed. The conviction and sentence recorded against them by the trial Court is set aside and they are acquitted of the charge and are ordered to be released forthwith, if not required in any other criminal case or if not already released after having undergone their entire sentence. Th appeals of appellants, Muhammad Iddrees Butt, Asadullah and Iftikhar Hussain (Criminal Appeals Nos.129, 101 and 102 of 2000) are partly allowed and while maintaining their conviction, we alter their sentence from U death to imprisonment for life.
However, punishment of fine or in lieu thereof is maintained. The offence being heinous and rising in the society, they are not entitled to the benefit of section 382-B, Cr.P.C.