P L D 2006 Lahore 780 (PLP)

SH. JAVAID SARFRAZ, J.

Muhammad Idrees was tried in case F.I.R. No.380-99 dated 30-7-1999 under section 6/9 Control of Narcotic Substances Act, 1997 read with section 489, P.P.C. registered at Police Station Shandara, District Lahore by the learned Additional Sessions Judge, Lahore, who vide judgment dated 8-11-2002 convicted the appellant under section 9(c) Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment of life with a fine of Rs.1,00,000 or in default whereof to further undergo six months' S.I. However, he was granted benefit of section 382-B, Cr.P.C. It was further directed that the assets of the accused derivable from trafficking in narcotics substances shall stand forfeited to the Federal Government unless it is not proved by the accused that they or any part thereof have not been so acquired.

2. Feeling aggrieved by the above said conviction and sentence, the appellant has filed the instant appeal.

3. Briefly the facts of the case as narrated in Exh.PA are that the highups of police received a secret information that Muhammad Idrees accused, deals in narcotics, whereupon a raiding party was prepared headed by the complainant and a decoy purchaser was sent along with Rs.3,000 who purchased 1 Kg. Charas from the accused and at the pointation of the decoy purchaser the accused was arrested and from his personal search Rs.3,000 sent-through decoy purchaser were recovered from his possession along, with sale proceed of Rs.7,000 and 100 counterfeit notes of the denomination of Rs.10 each. The accused then made a disclosure and led to the recovery of charas 120 Kilograms, opium 50 Kilograms from underneath a "Charpai" lying in his residential room and wrapped in "Torras", thus made into sealed parcels and were secured into possession through separate memos.

4. Zafarullah Khan, Inspector P.W.5 deposed that on 30-7-1999 while posted at C.I.A. Cantt., Lahore he was given a secret information by S.P. CIA that one Idrees dealt in narcotics, whereupon a raiding party was constituted including himself, Muhammad Ashraf, Mirza Hassan Muhammad and other constables. A dacoy purchaser was sent to the house of Muhammad Idrees accused. He was having Rs.3,

000. He purchased 1 kilogram charas from Idrees (P.2) which was taken into possession vide recovery memo. Exh.PB. A raid was conducted and Idrees accused was caught at the spot and on his personal search Rs.3,000 (Exh.P1/1-3) and Rs.7,000 including seven currency notes of Rs.1,000 (Exh.P.3/1-7) and rupees one thousand having hundred currency notes of the denomination of Rs. 10 each bogus, were also taken into possession. The above articles were taken into possession vide memo. Exh.PC. The appellant further got recovered 50 kilogrmas opium (P.4) and 120 kilograms charas in two bags (toras) from underneath a cot of a residential room of his house, which was taken into possession vide recovery memo. Exh.PD. The opium was lying in separate Toras. The Investigating Officer took 10 grams opium and charas from each toras respectively and made them into sealed parcels. He prepared site plan of place of recovery (Exh.PE). He took into possession motorcycle Honda CD-70. He drafted a complaint (Exh.PA/1) and sent the same through Muhammad Ashraf A.S.I. to the Police Station. The investigation of the case was then transferred to Mushtaq Ahmad, S.I. Once again the investigation of the case stood transferred to him and he recorded the statements of some of witnesses under section 161, Cr.P.C. and submitted a challan in the Court.

5. Dilber Hussain Moharrir/Head Constable P.W. deposed that on 4-8-1999 he received three sealed parcels i.e. two parcels said to contain charas and one was of Opium from Moharrir C.I.A., for onward transmission to the Office of the Chemical Examiner. He himself delivered the sealed parcels in the above-said office intact. Abdul Shakoor S.I. P.W.2 deposed that on 30-7-1999, on receipt of complaint sent by Zafarullah Khan Inspector, C.I.A. he drafted the F.I.R. on the basis of complaint without any omission. Karamat Ali Head Constable P.W.3 deposed that he kept three sealed parcels i.e. two parcels said to contain charas and one was of Opium in the Malkhana. On 4-8-1999 he delivered the above said parcels to Dilber Hussain for onward transmission to the office of the Chemical Examiner, Lahore. Mirza Hassan Muhammad SI, P.W.4 deposed that on 30-8-1999 he accompanied the raiding party and is a witness of recovery memo. Exh.PB, Exh.PC and Exh.PD. He narrated the mode and manner of the occurrence as stated in the F.I.R. Muhammad Mushtaq S.I./I.O. P.W.6 deposed that on 30-7-1999 at 4-45 p.m. he was handed over the copy of the F.I.R. and entrusted with the investigation of the case. He along with Muhammad Bashir and two gunmen proceeded to the place of occurrence. On the spot, Zafarullah Inspector P.W.5 along with Muhammad Ashraf Javaid A.S.I., Mirza Hassan Beg, S.I. and 5-7 police officials and also some private persons were present there. He recorded the statements of P.Ws under section 161, Cr.P.C. at the spot. On return to the police station he was handed over the custody of the accused/appellant. Next day investigation was transferred from him.

6. Learned Special Prosecutor gave up Muhammad Ashraf and Muhammad Mansha P.Ws. being unnecessary. Prosecution evidence was closed by tendering in evidence report of Chemical Examiner, Exh.PF.

7. The appellant in his statement under section 342, Cr.P.C. in reply to question wiry this case against you and why the P.Ws. have deposed against you, replied as under: "All the P.Ws. are police officials and they have deposed against me just to save the C.I.A. police from the cluches of law as my real brother Muhammad Younis had made application to the complaint Cell on 26-7-1999 which was later on forwarded to the S.H.O. Shandara on 26-7-1999 for inquiry and report. Police insisted my brother and myself to withdraw the above said application or disown it which was not accepted by my brother and the above case was made in retaliation." He also produced four witnesses in his defence. D.W.1 Muhammad Younis deposed that appellant Muhammad Idrees is his real brother. He lived in Samanabad, Lahore. His in-laws lived in Shandara Lahore. On 23-7-1999 his brother left Samanabad for Jia Mussa to hand over the motor bike to his father-in-law namely Ghulam Mi. At that moment he had got Rs.33,700 in his pocket as he had to pay Rs.33,000 to his father-in-law. When the accused did not turn up till 11-00 p.m., then they made inquiries to trace the whereabouts of the accused themselves. He approached the Illaqa Police at Shandara but was advised to trace the accused himself. On 26-7-1999, he moved an application before S.S.P. complaint cell for an appropriate action. It was marked to S.H.O. Shandara for necessary action. His application was received in S.S.P's office against diary No.4237-CC, dated 26-7-1999. In the year 1998 his son was murdered and the accused was the complainant in that case. He went to police station on 28-7-1999 along with Ghulam Haider and Syed Wajid Ali Shah to inquire about his brother missing at that m9ment but he was sent back to make some search himself. On 29-7-1999 he went to police Station Shandara along with the above said two persons to inquire about his brother and then he was told by the Illaqa Police that Muhammad Idrees accused was with C.I.A. Police at Qilla Gujjar Singh, Lahore. Zafar Ullah; Inspector, C.I.A. coupled with Mirza, S.I. forced him that he should not persue the case F.I.R. No.73/98 dated 9-4-1999 under section 302, P.P.C., Police Station Samanabad, Lahore. He was accompanied by said Ghulam Haider and Wajid Ali Shah. The C.I.A. police gave him some time to ponder over the matter. They also forced him to effect a compromise with the accused party and forced them to receive rupees five lacs by way of compensation. The accused was also tortured by the police. On 30-7-1999 they consulted with a counsel to file a habeas corpus petition for the recovery of the accused from the illegal detention of C.I.A. On the next day, the petition was to be filed but they read in the newspaper that the accused had been arrested in this case. He lastly deposed that his brother had been involved in this case which was false, and that he was innocent. Arshad Ali D.W.2 is brother-in-law (e) of Muhammad Idrees appellant. He also supported and reiterated the story as set by D.W.I. Ch. Ghulam Haider, D. W .3 visited C.I.A. Staff Qilla Gujjar Singh along with D.W.1 where they were forced to affect a compromise in a murder case. Shamshad Hussian D.W.4 brought the register of complaints which shows that an application was moved by Muhammad Younus vide diary No.4237-CC dated 26-7-1999 and the same was forwarded to S.H.O. Shandara but he did not know what happened with that application.

8. After conclusion of the trial above said conviction and sentence was passed.

9. Learned counsel for the appellant in support of his case submitted that the entire investigation was conducted by the C.I.A. officials, who were not competent to do so and thus all things done were illegal and mala fide; that Zafarullah Khan S.H.O. had no authority to arrest the appellant, to register the F.I.R. and record statements under section 161, Cr.P.C.; that if law required certain thing to be done in a particular manner, the same should be done in that manner; that the entire evidence is un-authorized and has vitiated the entire trial; that the house from where the alleged recovery had been effected was not in the exclusive possession of the appellant; that 20 people appeared before the Investigating Officer in support of the appellant to show his innocence; that no private witness had appeared in support of the prosecution case; that the S.H.O. was of dubious character; that 4 witnesses appeared in support of the appellant in the trial Court; that only 10- grams were sent to the Chemical Examiner while the remaining was not sent; that the house belonged to Ghulam Ali and has not been arrested in his case and he was not even examined; that tenancy agreement should have been obtained; that Section 103, Cr. P. C. has been violated; that when doubt is created in the prosecution case, the benefit of the same should go to the accused; that it is a clear case of dishonest investigation, thus, the judgment is liable to be set aside and the appellant be acquitted. He has relied upon State through A.G. v. Bashir and others PLD 1997 SC 408 and Iftikhar v. The State PLD 1995 Lah. 606.

10. The appeal has been vehemently opposed by the learned State counsel who submitted that the appellant is nominated in the F.I.R; that 120 kilograms of Charas and 50 kilogrms of opium/narcotic substance have been recovered from him; that all the prosecution witnesses have deposed against the appellant and no enmity has been shown whereby the P.Ws. would give statements against the appellant; that in his statement under section 342, Cr.P.C., no cogent defence has been taken by him to shatter the case of the prosecution.

11. The main thrust of argument of learned counsel for the appellant was that the investigation was conducted by C.I.A. police as the Investigating Officer was an Inspector of C.I.A., therefore, the entire investigation was illegal, void ab initio and the appellant was entitled to acquittal on this ground alone. However, this argument of the learned counsel is misconceived. Zafarullah Khan Inspector, P.W.5 who was posted at C.I.A. Cantt., Lahore had received a secret information by the S.P. C.I.A. that the appellant was dealing in business of narcotics. Accordingly, he conducted the raid and arrested the appellant. However, the said Inspector sent the case to the police station where F.I.R. was registered and investigation of this case was entrusted to Muhammad Mushtaq S.-I. Police Station Shandrara, Lahore. Subsequently, on 31-7-1999 S:S.P., Lahore transferred the investigation of this case to S.P., C.I.A. who further entrusted it to Zafarullah Khan, Inspector, C.I.A., Lahore Cantt. It was on the subsequent entrustment of the investigation that Zafarullah Khan Inspector C.I.A. P.W.5 conducted the investigation and recorded statements under section 161, Cr.P.C. of some of witnesses and submitted challan in the court. Learned counsel for the appellant has relied upon Iftikhar Ahmad alias Dani v. The State (supra). In the said case the investigation was conducted by the C.I.A. without being entrusted to them. However, in that very case it has been held that C.I.A. staff can undertake the investigation of the case provided the same is entrusted to them. The relevant portion is reproduced as under:-- "12. .The members of the C.I.A. staff are subordinates of the Superintendents of Police of the District which S.P. has the powers of an Officer-in-Charge of the police station in view of the provisions of section 551 of the Cr.P.C. Therefore, the members of the C.I.A. staff, irrespective of their rank and status, can investigate cases only when they have been entrusted to them by an Officer-in-Charge of the Police Station to whom they are subordinate i.e. in case of C.I.A. staff, the S.P. of the District." (Underlining is ours) The above would show that the investigation so conducted by PW-5 Zafarullah Khan Inspector C.I.A. was under due authorization by the competent authority. Even if it is presumed that Zafarullah Khan Inspector was not competent to investigate the matter yet it would amount to only an irregularity which will not affect the impugned judgment. No injustice has been caused to the appellant and he even failed to raise any objection at a proper time, therefore, he is under the law estopped to raise this objection at this stage. Learned counsel for the appellant also referred to "State through Advocate General v. Bashir and others" (supra) and submitted that the C.I.A. personnels do not have the power to investigate a cognizable offence. This judgment is also not applicable to the facts and circumstances of the case in hand as the investigation was entrusted to C.I.A. by S.P. concerned. However, even in this case, the Hon'ble apex Court while referring to section 156(2) of the Cr.P.C held that the violation of section 156(1) may not vitiate a trial, if no serious prejudice has been caused to accused persons concerned resulting in miscarriage of justice. As noted above, learned counsel for the appellant has not been able to show any miscarriage of justice to the appellant in this case.

12. Learned counsel also submitted that while the house from where the alleged recovery has been effected was not in exclusive possession of the appellant and that the house belonged to one Ghulam Ali, who was not arrested in this case and even was not examined and the tenancy agreement was not obtained. Suffice to say that the appellant was caught red handed while selling charas and then he himself led to his home to the recovery of narcotics from his room. Therefore, associating Ghulam Ali owner of the house was neither necessary, nor it was required under the law. Admittedly, all the prosecution witnesses were police officials and no private witness has appeared in support of the prosecution case. However, the police officials are as good witnesses as any private witness. It has also been noticed that in such like cases, private persons are reluctant to appear as prosecution witnesses. Reliance is placed upon "Jan Gul v. The State" (2003 PCr.LJ 1515 and Rahim Dad v. State 2002 PCr.LJ 1506). The objection of learned counsel that only 10 grams was sent to the Chemical Examiner while the remaining was not sent also does not carry any weight. The superior courts have held that it is not necessary and mandatory that the entire recovered narcotics has to be sent for the report of Chemical Examiner. The narcotics were recovered from two separate bags and 10 grams were taken from each bag and sent for Chemical Examiner, which is the requirement of law. Respectfully reliance is placed upon "Nadir Khan v. State" (1988 SCMR 1888).

13. In his statement under section 342, Cr.P.C. the appellant took the defence that his real brother Muhammad Younus had moved an application to the complaint cell against the police, which was forwarded to the S.H.O. Shandara and the police was insisting that he should influence his brother to withdraw the same. In defence he produced 4 witnesses. D.W. 1 deposed that in 1998 his son was murdered and the accused/appellant was complainant in that case and the police officials were forcing him to affect compromise and were in fact offered Rs.5,00,000 by way of compensation. According to him F.I.R. No.73/98 dated 9-4-1998 under section 302, P.P.C. was registered at the police Station Samanabad, Lahore and D.Ws. supported the statements of D.W.1. However, copy of the said F.I.R. has not been brought on the record. The witnesses have not deposed as to the final outcome of the said case and whether any police official was convicted in that case or not. We are not impressed by the defence version specially in view of the fact that accused in his statement under section 342, Cr.P.C. has not mentioned any murder case of which he was alleged to be the complainant and also the fact that over three years had passed and the witnesses did not depose about the result of the murder case. Although it is argued that 20 people appeared before the Investigating Officer in support of the appellant to show his innocence but none of them has appeared as defence witness to support the appellant.

14. Learned counsel for the appellant has also referred to section 103, Cr.P.C and submitted that this provision has been violated by the police inasmuch as respectable inhabitants of the locality were not called upon at the time the search was mare. Learned counsel submitted that when the search was illegal, all the subsequent events become illegal. This objection is also not entertainable as under section 25 of the Control of Narcotic Substances Act, 1997, the applicability of section 103, Cr.P.C. has been excluded. The relevant provision is reproduced as under:- "

25. Mode of making searches and arrest.

The provision of the Code of Criminal procedure, 1898, except those of section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections." Reliance is also placed on "Fida Jan v. State (2001 SCMR 36)". As section 103, Cr.P.C is not applicable to the cases relating to narcotics, even if two or more respectable inhabitants are not called at the time of search will not affect the credibility of search so made.

15. In the light of what has been discussed above, we hold that the prosecution has proved its case successfully against the appellant and the defence has failed to make out their case.

16. We have also considered that whether mitigating circumstances exist in the present case for a lesser sentence? However, in view of the fact that 121 Kg. Charas, 50 Kg. opium has been recovered from him, with such a huge quantity of narcotics, the appellant does not deserve any leniency of any sort and this is not a case where the sentence should be reduced.

17. Resultantly, this appeal is dismissed, conviction and sentence is maintained. S.M.B./M-439/L Appeal dismisse