2005 PLP 1487 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition has been filed against the judgment, dated 21st February, 2002 passed by Lahore High Court, Multan Bench, Multan, whereby the conviction of the petitioner has been maintained, however, the sentence of rigorous imprisonment for 14 years has been reduced to seven years' R.I. for the offence under section 9(c) of the Control of Narcotic Substances Act, 1997.

2. Precisely stating the facts of the case are that on 15th November, 1997, statedly, petitioner who was posted as Assistant Superintendent (Octroi) was found in possession of one Killo and forty grams of Charas. Accordingly, police apprehended him and as case was registered against him. Accused's case/explanation was that his staff members had apprehended two persons who were possessing the Charas but no sooner they were arrested they made their escape good as such he wanted to hand over the Charas to the police but he has been falsely involved in the case. In this behalf he has also made a report which was subsequently produced in trial as Exh.D.B. Learned Additional Sessions Judge, Sahiwal, after holding the trial found the petitioner guilty for the commission of the offence as such he was convicted/sentenced, as mentioned hereinabove, by means of judgment dated 30th January, 2001. The appeal filed by him before learned High Court failed as his conviction was maintained, however, his sentence of 14 years' R.I. was reduced to that of 7 years' R.I. as such instant petition for leave to appeal has been filed.

3. Learned counsel contended that the petitioner is innocent as he was not involved for the commission of the offence and the report (Exh.D.B.) which he had prepared immediately after the occurrence, was not taken into consideration by the learned High Court as well as trial Court.

4. In this behalf it may be noted that learned High Court, while taking into consideration the said report, disbelieved the same, considering it be an afterthought. Relevant paragraph therefrom is reproduced hereinbelow:-- "(9) The accused admitted that Charas was recovered from the possession of two unknown persons by his subordinates and that he had immediately sent a report (Exh.D.B.) to the Superintendent Octroi. It is strange that he retained the Charas with him but allowed the culprits to escape and sent a report for action against Mirza Mehboob Alam and Haji Abdul Sattar officials. This report bears the report of the Octroi Superintendent dated 17-11-1997 and the report of the Legal Adviser. The recovery of Charas is a serious offence. The Octroi staff should have immediately referred the matter to the police instead of making a case for evasion of octroi duty. It is, therefore, established that the culprits, in fact, were let off by the accused and his subordinates, which supports the prosecution case. The accused should have taken up this plea before the Investigating Officer. He should have disclosed before the police that he had made a written complaint to the Superintendent Octroi and it was not difficult for him to get the report (Exh.D.B.) prepared subsequently in connivance with his colleague. It is evident from the suggestions given by the accused to the P.Ws. that the plea of the accused is afterthought and the P.Ws. have deposed falsely in order to save their colleague."

5. It may be noted that in terms of section 29(d) of the Control of Narcotic Substances Act, 1997 unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence. We have asked the learned counsel to explain as to why he had not discharged the burden to show that he was not in the possession of the narcotics i.e. Charas, his reply was that report Exh.D.B. is the document which indicates that the petitioner immediately informed to the concerned Authorities about the event which took place prior to taking into possession the narcotics but this report has not been considered. We are afraid, this argument is not available to him in view of the discussion of the High Court in the paragraph which has been reproduced hereinabove.

6. After hearing the learned counsel for the petitioner and having gone through the impugned judgment carefully, we are of the opinion that the petitioner has rightly been found guilty for the commission of the offence and the impugned judgment being unexceptionable admits no interference by this Court. Thus, for the foregoing reasons, we see no merit in this petition as such the same is dismissed and leave declined. M.H./I-98/S Petition dismissed. ***