1998 PLP 323 (MLD)

The schedule at Item No.4 reads:-- "Opium and' opium derivatives as defined in Dangerous Drugs Act, 1930 (11 of 1930)". Dangerous Act, 1930 defines opium and opium Derivatives in its sections 2(e) and 2(f) as under:-- 2(e) "Opium" means:-- (i) Popy straw, that is to say, all parts of poppy plant (Papaver somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted; (ii) the spontaneously coagulated juice of (Capsules of Poppy) which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii) any mixture, with or without neutral materials, of any of the above forms of opium; but does not include any preparation containing not more than 0.2 percent. of morphine; 2(f) "Opium derivative" means:-- (i) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the British Pharmacopoeia, whether in powder form or granulated or otherwise or mixed with neutral materials; (ii) Prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking, and the dross or other residue remaining after opium is smoked; (iii) morphine, that is, the principal alkaloid of opium having the chemical formula C 17 H 19 No 3, and its salts; (iv) diacetylmorphine, that is, the alkaloid, also known as diamorphine or heroin, having the chemical formula C 21 H 23 No 5, and its salts; and (v) all preparations, official and non-official, containing more than 0.2 per cent, of morphine, or containing any diacetylmorphine; Now it has become clear that "Opium" includes any mixture, with or without neutral materials, of any of the parts of poppy plant (Papaver somniferum of any other species of papaver) after mowing not being seeds, from which narcotics can be extracted. Of course, it does not include any preparation containing not more than 0. 2 percent. of morphine. The defence has made efforts to play on the word "Opium contents" in the Report of Chemical Examiner (Exh. PL). The examiner himself, examined as C.W.1, is clearly; making a reference to clause (iii) of section 2 (e) of the Dangerous Drugs Act, 1930, The bulk of 11 Kgs. was a mixture with and without neutral materials of all parts of poppy plant from which narcotics could be extracted. No suggestion has been made to P.Ws., of C.W that the incriminating material was not mowed or was the seed of poppy or it was a substance from which narcotics could not be extracted or that it was that type of medical opinum which had not undergone the processes necessary to adapt it for medical use in accordance with the requirements of the British Pharmacopoeia. On the other hand I gather from the deposition of C.W.1 that the recovery was that of a mixture of various species of papaver with or without neutral materials, from which narcotics could be extracted and thereafter the bulk of 11 Kgs. was falling within the mischief of the word "Opium" as used in Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 for the transportation and trafficking of which maximum punishment prescribed by law is inter alia, imprisonment for life. So far as my conclusion that narcotics could be extracted from the recovered "Opium", it is based on the following passages from authentic works on the subject:-- "

1. The terms opium refers to the crude resinous exudate obtained from the opium poppy ...Morphine is the major pain-relieving drug found in opium, being approximately 10 per cent of the crude exudate. Codeine is structurally closely related to morphine, although it is much less potent and amounts to only 0.5 per cent of the opium extract. Heroin does not occur naturally but is a semisynthetic derivative produced by a chemical modification of morphine that increases the potency." (A Primer of Grug action by Robert M. Julien. Chapter

7. Fifth edition, 1988--W.H. Freemars Co. New York. 2. "Opiates are drugs derived from opium... The pharmacologically active substances, which constitute approximately 25 % of the extract, are the alkaloids morphine, codeine, and papaverine". (Concise Encyclopaedia of Science & Technology. Second edition, 1989 Mcgraw-Hill. The upshot of the discussion is that this contention of appellant's counsel fails. 6.The contention that there are substantial contradictions among the P.Ws. is based on the following material available in the record. (i) During cross, Sher Khan (P.W.1) A. S. I., C: I. A. Staff Peshawar has disposed. "We left C.I.A. Headquarters for Naqabandi and our party being headed by D.S.P. Shah Wali Khan, was consisting of Ghulam Muhammad Khan, Inspector, Madad Khan, Inspector, Abdur Rashid Khan, Inspector, myself and some constables. We used one vehicle meant for Mobile Duty for the abovementioned journey." In contradiction to this Ghulam Muhammad Khan (P.W.12) has deposed during cross. "As far as I remember, I myself has travelled in the Mobile Van and the rest I do not remember that whether we all went in the same vehicle or separately in different vehicles." (ii) P. W.1 is deposing during cross. "I do not know whether the scale and stones were lying in the vehicle or were arranged from anywhere else." In contrast, P.W.2 is deposing during cross: "I do not remember whether the scale and weight stones were with me but my subordinates have arranged the same. I do not remember the name of my that subordinate." (iii) P.W deposes during cross: "Approximately, half an hour was consumed from the time of nabbing the accused, weighing the contraband and sealing the same back into the parcels. The scriber of the recovery memo. is Inspector Ghulam Muhammad Khan. This half an hour is contradicted by Murasila (Exh.PA) which indicates time of occurrence to be 15-00 hours and time of Report to be 15-20 hours. It has also been contended that this time of 20 minutes is not enough to complete search and scribe and then reach police station which was 2 KMs. distant. (iv) P. W.1 is deposing: "The scriber of the recovery memo. is Inspector Ghulam Muhammad Khan. " But against the same P. W is taking another stand in the following words: "The memos were prepared in my handwriting at the dictation of the I.O. " So far as discrepancy shown at No. (i) above is concerned, P. W.1 has spoken of 5 officers of C.I.A. including Ghulam Muhammad (P.W.2) plus some constables using one vehicle for mobile duty, whereas Ghulam Muhammad (P.W.2) is not denying such a position but rather he is stating that he does not remember. This is not a contradiction, but it does cost doubt in the normal mental set-up of the deponent at that proper moment when he was facing cross. This objection is not so substantial as to demolish the whole story. So far as discrepancy shown at No.(ii) above is concerned, it is not discrepancy at all as P. W.1 is showing ignorance about the source of scales and stones and P.W.2 is stating that any one of his subordinates had arranged the same. It would have created doubt in case P.W.2 was going to identify P.W.1 being that subordinate who arranged the scales etc. So far as No. (iii) above is concerned, it is misconceived as F.I.R. indicates 1600 hours as the time of its writing (Chakidagi Parcha) meaning thereby that the appellant was intercepted at 3 p.m. and F.I.R. was written at 4 p.m. One hour is enough for all those legal actions which were essential. No:(iv)supra is not at all a self-annihilating piece of evidence as P.W.I has firstly said that the scriber of recovery memo is P.W.2 who is also Investigation Officer of the case, and secondly he has simply clarified that at the dictation of Investigation Officer he wrote the memos. Anyone who dictates in his words and can be termed as an scriber or author of the document written in the hands of another.

7. Appellant's counsel has made a reference to the violations of the mandatory provisions of section 103, Cr.P.C. According to him Scooter which was searched was a place as it was a vehicle within the meaning of Article 2 (j) of Prohibition (Enforcement of Hadd) Order, 1979 and, therefore, two or more respectable inhabitants of the locality should have been called by Investigation Officer to become mushirs of search. It was not done in spite of earlier secret information and Recovery memos. (Exhs.PB and PB/1) are showing two officials of the C.I.A. Police Peshawar as mushirs. This aspect has been explained by Ghulam Muhammad (P.W.2), Investigation Officer, in the following words of his deposition:-- "I did make an effort for procuring public witness for the recovery memo but no one was ready for this service. It is correct that whenever a person is called upon to become a witness and he refuses can be proceeded against under the law." The objection that in such a case, the Investigation must have taken actions under section 188, P.P.C. has no bearing on this case. The mushir of Recovery Sher Khan (P.W.1) in his deposition is totally intact about this aspect and inspires confidence.

8. Following words of para. No.7 of the impugned judgment have been assailed on the presumption that the remarks about Scooter are conjectural in nature as it was not exhibited. To a suggestion P.W.1 has deposed. "It is correct that the said Scooter is not exhibited today in the Court as a case property". Para. No.7 of the impugned judgment reads:-- "The prosecution has proved the case of recovery of 11 K.gs. of opium from the possession of the accused which he was undoubtedly carrying in the Diggi of his Scooter." Once so, then how could the trial Court conclude that the Scooter had a diggi with a capacity for containing 11 K.Gs. of opium? Reliance has been placed on 1987 PCr. LJ 2492 and 1996 PCr. LJ 1394. I do not agree with this contention firstly because Sher Khan (P.W.1) is not the Investigation Officer and secondly because Ghulam Muhammad (P.W.2), the Investigation Officer of the case, has replied to a suggestion that the Scooter was Vespa. Now it is a common knowledge that Vespa has a diggi, capacious enough to contain 11 K.gs. of opium 1996 P.Cr.LJ 1394 is clearly distinct from the present case as in the cited case of Peshawar jurisdiction hand grenades and fuses alleged to have been recovered from the accused were not produced in the Court in the prosecution evidence and armourer who had examined the hand grenades etc. was not produced in the witness-box to stand the test of cross examination. In the present case not only the incriminating intoxicant has been produced in the trial Court but the chemical examiner has also entered the witness-box as C.W.1. Citation 1987 P.Cr.LJ 2492, a Full Bench judgment of this Court, is again distinguishable as in the said case it was alleged that 700 grams of heroin were recovered from a pocket of a trouser. Since the trouser was neither recovered nor produced for examining possibility for keeping packet of 700 grams in a pocket of a trouser and since there were clear substantial discrepancies among P. Ws. with other attending circumstances, the appellant was given benefit of doubt. As discussed earlier the make of Vespa Scooter is such that its diggi can easily contain 11 K.gs. of opium.

9. Now comes the question of the alleged existence of animus in the minds of the C.I.A. police against the appellant. In his statement under section 342, Cr.P.C., the appellant has replied to a question as under:-- "As D.S.P. Shah Wali Khan is on inimical terms with me on the issue of free passes for the stage shows produced by me, hence on his directions the I. O. has fabricated the present case against me. " To another question he has replied:-- "I am innocent and falsely charged as mentioned above. As a matter of fact I was arrested from my house, besides my Scooter was lifted from my house and was charged in the case on the behest of D.S.P. C.I.A. and Ghulam Muhammad Khan, Inspector C.I.A., Peshawar." The counsel for appellant has tried to prove that such animus do exist from the following piece of deposition of Sher Khan (P.W.1):-- "It is correct that I have taken custody of the accused in another case registered vide F.I.R. No.686, dated 26-8-1994 P.S. West Cantt. and investigated by C.I.A. after he was arrested in this case under section 379, P.P.C. read with 14 of the Islamic Law pertain to the theft of a Scooter. " This question is resolved by the following passage from the impugned judgment: "Another factor which goes against the accused is that he was granted bail in the instant case but on 5-8-1996 he was again arrested by the Narcotics Department for the recovery of Narcotics and a case vide F. I. R. No. 13, dated 5-8-1996 under section 6/7/9 Control of Narcotics Substance Ordinance, read with section 165-A, P.P.C., P.S. Narcotics, which indicates his conduct of habitual dealing in the narcotics." In the cited case, Department of Narcotics has nabbed the appellant and not C.I.A. police. This allegation of enmity is an afterthought and is not proved, by the appellant. He has even declined to say so on oath in the witness-box. Ghazi Marjan (P.W.3) may be correct that the appellant is not even a smoker and is a very noble person, but he has also volunteered to state: "To err is human." So, many a times a judicial notice has been taken that many a times apparently noble and non-smoking persons, and even those who have not tested a single drop of liquor, do deal in smoking materials, intoxicants, narcotics, liquor for the sake of earning money. Resultantly this contention fails.

10. It has been contended that the personnel related to investigation are short of the knowledge of weighing material. Sher Khan (P.W.1) is deposing: "There were four/five weight stones used by the Investigation Officer. The weight stones included a five K.G., two K.G. and one K.G. which I remember." From this a conclusion has been drawn that it was not possible to weigh 11 K.gs. of opium with such stones as 5+2+1 which makes

8. This contention is misconceived for the simple reason that the witness has simply referred to 5+2+1 K.G. stones as some of the stones. Since no suggestion has been made to any of the P.Ws. regarding stones other the ones clarified by this witness, this piece of evidence will go as unchallenged as the evidence is indicating existence of other stones and scales which could even weigh the grammage of the samples. The upshot of the entire discussion is that the appeal is dismissed the conviction and sentences as awarded by the trial Court are upheld. N.H.Q./1146/FSC Appeal dismissed.