P L D 2006 Peshawar 74 (PLP)

IJAZ-UL-HASSAN KHAN, J.

This Criminal Appeal has been directed against the judgment dated 11-11-2005, passed by learned Additional Sessions Judge-II, D.I. Khan, whereby appellant Muhammad Daud was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer four years' R.I. and fine of Rs.1,00,000 or in default whereof to undergo further S.-I. for six months. The benefit admissible under section 382-B, Cr.P.C. was, however, extended to him.

2. The brief facts of the case are that on 10-5-2003, a police party headed by S.H.O. Kausar Ali of Police Station Yark, had conducted `Naka Bandi' at Dera Bannu Road, New Abusamra. In the meanwhile, at about 6-30 a.m. a Flying Coach bearing Registration No.C-1441, DIK, was sighted coming from Yark side. The vehicle was stopped for checking. A passenger sitting on front seat of the vehicle was found having a plastic envelope lying in his lap. The envelope was opened. It contained three packets of charas. The charas was weight and found 3000 grams. On asking, the said person disclosed his name as Muhammad Daud son of Abdul Jalil, resident of Ahmad Khel, Lakki Marwat. He was formally arrested and a case was registered against him under section 9(c) of Control of Narcotic Substances Act, 1997.

3. At trial, the prosecution in order to prove its case against the appellant, examined S.-I. Muhammad Nawaz P.W.1, F.C. Shahzad P.W.2 and S.H.O. Kausar Ali P.W.3. The appellant in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged on account of his refusal to grease palm of the Investigating Officer. He produced Bashir Ahmad and Shamsur Rehman in his defence. In reply to a question, "as to what is your statement and why are you charged", he stated: "I am innocent and have falsely been implicated in the instant case. In fact something was taken up by the local police from the dash board of the vehicle and as I was sitting in front seat of the vehicle, so the above mentioned article was implicated against me although there was another person sitting as the second on the frontal portion of the vehicle, besides the driver. The driver and that person were set free by the local Police." In reply to 'another question, "why the P.Ws. have deposed against you", he replied: "All the recovery witnesses are police officials who are subordinate to the Investigating Officer and were made witnesses and on the direction of the Investigating Officer although many persons from the public were ready to state to the police that nothing was recovered from my personal possession. But the local police deliberately did not examine them and I have been falsely and maliciously implicated in the instant case as I was not giving money to the Investigating Officer which was being demanded from me on the spot."

4. On conclusion of trial, learned trial Judge having found the appellant guilty of the offence convicted and sentenced him as mentioned and detail above.

5. Mr. Gohar Zaman Kundi, Advocate, in support of the appeal, contended that Kausar Ali P.W.3 not being Sub-Inspector as contemplated by section 21 of the CNS Act, 1997 was not competent to conduct search etc. and as such, the entire exercise conducted by him was bad for want of lawful authority; that neither the Coach driver nor any of its passengers was asked to witness the search/recovery nor a single independent person was examined by the police in this behalf which certainly reflects upon the so-called recovery proceedings; that there are glaring contradictions and discrepancies in the statements of the prosecution witnesses of which the trial Court has not taken notice of, moreso that defence version which was plausible and nearer to the truth, was brushed aside without cogent reasons; that the trial Court has misread and misappreciated the evidence and there is no cogent evidence on record which could connect the appellant with the commission of crime and that the belated dispatched of alleged parcels of contraband to the laboratory having virtually violated the F.S.L. report, the trial Judge was not justified in recording conviction against the appellant. To substantiate the contentions, reliance was placed on Muhammad Hanif v. The State 2003 SCMR 1237; State through A.-G. Sindh Karachi v. Hemjoo 2003 SCMR 881; Tariq Pervez v. The State 1995 SCMR 1345, Ghulam Qadir v. The State PLD 2006 SC 61; Mushtaq v. The State 2002 PCr.LJ 1312; Adil Hussain v. The State 2003 YLR 1901.

6. Meeting the arguments addressed on behalf of the appellant, Chaudhary Muhammad Sharif; learned Deputy Advocate-General maintained that prosecution has brought sufficient material on record to implicate the appellant with the commission of crime and in the absence of any ill-will or animosity on the part of the police, such huge quantity of charas cannot be expected to be planted on the appellant.

7. We have carefully examined the respective contentions of the learned counsel for the parties and have thrashed out the entire evidence with their assistance. After having carefully scrutinized the evidence, we are of the view that prosecution has established the factum of recovery beyond shadow of doubt and thus proved the accusation to the hilt. We are not persuaded to agree with learned counsel for the appellant that since the recovery was effected and investigation was made by an un?authorised police officer in violation of mandatory provisions as contained in sections 21 and 22 of the CNS Act, 1997, the whole trial ;c vitiated for the simple reason that arrest, seizure and investigation by an incompetent police officer would not vitiate the trial and at the best such an irregularity can be cured under section 537, Cr.P.C. as it has caused no prejudice to the appellant. If. an authority is needed on the point, reference can be made to Muhammad Hanif v. The State 2003 SCMR 1237 and The State v. Bashir PLD 1997 SC 408.

8. It would be seen that the appellant has not denied his arrest on the day of the incident. However, according to him no narcotic substances were recovered from his person and he was malafidely booked in the present case also for the reasons that he refused to pay the police party the demanded money. However, the appellant has failed to substantiate the aforementioned pleas through any cogent evidence except for the bare allegation to the same effect before the trial Court and questions put to the contrary to the P.Ws. who have stated falsely denied the same.

9. In so far as the prosecution case is concerned, it would be seen that P.Ws. have fully corroborated each other. It is settled principle of law that official witnesses are as good as any unless mala fide intention is established by the accused which as observed above, he has failed to accomplish. So also it would be seen that per section 25 of the CNS Act, section 103 of the Cr.P.C. pertaining to search and seizure have been excluded. Reliance in this regard can be placed on the case of Muhammad Hanif v. The State 2003 SCMR 1237.

10. Adverting to the objection regarding delay in sending of the sample, it would be seen that recovery was made on 10-5-2003, contraband charas was sent to the Laboratory on 12-5-2003 and report is dated 5-6-2003. However, it would be seen that no questions were asked in cross-examination of the P.Ws. as to whether the case property produced in case was tampered with or the sample thereof was not sent to the Chemical Examiner for testing purposes. Consequently, we are of the view that mere delay in sending the sample is insignificant in the A facts and circumstances of the case. Muhammad Ali v. The State 2002 PCr.LJ 976 and Gharibullah v. The State 2002 YLR 3822.

11. For the foregoing reasons, the prosecution had proved the guilt of the appellant beyond all reasonable doubts and had successfully discharged its burden through consistent and confidence-inspiring evidence. The prosecution witnesses had no malice or ill-will against the appellant to falsely implicate him in the instant case. The appellant had made no endeavour to rebut the prosecution case by discharging ,his burden under section 29 of the CNSA. The mere denial of charge and pleading innocence without substantiating his plea through cogent evidence is not sufficient to secure acquittal. Besides, the findings of the trial Court could not be shown to have been passed on misreading or non-reading of evidence. The judgment is based on correct application of law and proper evaluation of evidence and, therefore, we would maintain the impugned judgment insofar as the conviction is concerned. However, we would reduce the appellant's sentence from four years' R.I. to two years' R.I. or in default whereof to suffer further S.I. for three months. We would also reduce the amount of fine from Rs.1,00,000 to Rs.25,000, keeping in view the fact that the appellant is a first time offender and the entire future is before him. With the modification, the appeal fails which is hereby dismissed. H.B.T./25/P???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.