2006 PLP 1583 (YLR)

M.A. SHAHID SIDDIQUI, J.

Shahzad alias Baggo appellant was convicted by the learned Sessions Judge, Bahwalpur for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997, in case F.I.R. No.8 of 1999, registered with ANF Police, Bahawalpur. He was sentenced to rigorous imprisonment for life with a fine of Rs.2,00,000 vide judgment dated 7-7-2001.

2. On 12-8-1999 a contingent of Anti-Narcotic Force (ANF), Bahawalpur-Multan, headed by Captain Noor-ud-Din, Assistant Director, which included Muhammad Aslam, Inspector/S.H.O., ANF, Bahawalpur (P.W.3) and Faiz Muhammad (P.W.2), intercepted a white Toyota Corolla Car bearing Registration No.LOQ-3675 on spy information near Tehsil Headquarters Hospital, Khairpur Tamewali. The driver of the car while attempting to escape collided with an official car. The appellant was overpowered. After some hesitation he opened the Diggi of his car and took out a plastic bag, which contained 12 packets of Charas each weighing 1.250 kilogram. Ten grams of the recovered substance from each cake was separated for chemical analysis and made into sealed parcels. The accused then led the police to the house of Mst. Razia from whose possession 25 kilogram opium and 10 kilogram Charas was recovered. The appellant and Mst. Razia both were booked separately. F.I.R. (Exh.PC/1) was formally registered on the report (Exh.P.C) sent by Muhammad Aslam, Inspector/S.H.O. from the spot.

3. The appellant was formally charge-sheeted on 20-9-000. he pleaded not guilty and claimed trial. The prosecution examined four witnesses in order to bring home the charge against the accused and tendered in evidence the report of Chemical Examiner (Exh.P.E.). The accused in his statement under section 342, Cr.P.C. denied the allegation. He pleaded that the recovered substance was planted upon him by the police due to enmity with a constable of ANF at Bahawalpur. He maintained that the car was in fact taken into custody by the police from his brother and planted upon him. He produced Muhammad Idrees (D.W.1) in his defence. His statement is to the effect that the appellant was arrested from the house of Mst. Razia Bibi from whose possession some intoxicant substance had been recovered by the police. While explaining the presence of the appellant at the time of the arrest of Mst. Razia, Muhammad Idrees (D.W.1) stated that Mst. Razia had in fact hired the car of the appellant for going to New Central Jail, Bahawalpur to see her husband.

4. At the conclusion of trial, the learned trial Court came to the conclusion that the prosecution had proved its case against the appellant beyond reasonable doubt. Accordingly he was convicted and sentenced as detailed in the opening paragraph of the judgment.

5. Learned counsel for the appellant while assailing the conviction pleaded that the Anti-Narcotic Force was in fact headed by Captain Noor-ud-Din, Assistant Director at the time of recovery, as such, the prosecution was under a legal obligation to produce him in the witness-box. He argued that the omission of the prosecution to produce Captain Noor-ud-Din leads to an inference adverse to the prosecution. He also argued that no independent witness from the locality was associated to witness the recovery proceedings and the discrepancies appearing in the statements of the two witnesses make the prosecution story doubtful.

6. The learned counsel appearing on behalf of the ANF supported the judgment. He argued that the P.Ws. have no motive to plant such a huge quantity of Charas upon the appellant.

7. We have made reappraisal of the entire material brought on the record. There is no doubt that both the recovery witnesses were public servants but there is nothing on the record to show that they had any feeling or ill-will or motive to falsely implicate the appellant. In cross-examination no suggestion was given to the P.Ws. that they had deposed falsely due to enmity. The accused himself has not taken up the courage to appear in the witness-box under section 340(2), Cr.P.C. in disproof of the charge. Muhammad Idrees (D.W.1) has given a different story altogether which has no nexus with the defence plea. The statements of both the eye-witnesses are consistent. The failure of the prosecution to produce independent witness is not fatal to the prosecution in any manner. Reliance may be placed on PLD 2004 SC

204. As per report of the Chemical Examiner (Exh.P.E.) the recovered substance has been reported to be Charas. The discrepancy pointed out by the learned counsel for the appellant is in respect of the damage caused to the official vehicle. Suffice it to say that it is of a very minor nature. It does not affect the intrinsic worth of the recovery witnesses. The learned trial Court has rightly held that the prosecution case was established against the appellant. We have noticed that the learned trial Court has omitted to pass any sentence in case the appellant fails to pay the fine. We, therefore, while dismissing the appeal, feel necessary to add that the appellant would undergo further simple imprisonment for one year in case he fails to pay the fine. H.B.T./S-55 Appeal dismissed.