2006 PLP 1141 (YLR)

SYED SHABBAR RAZA RIZVI, J.

The appellant has tiled this appeal against order/judgment dated 3-3-2005 passed by Mr. Mehmood Iqbal Khan, Additional Sessions Judge, Sialkot. By the impugned judgment, the learned Additional Sessions Judge convicted appellant and recorded sentence under section 9(b) of the Control of Narcotic Substances Act, 1997 to 10 months' R.I., with a fine of Rs.5,000 and in case of non-payment of fine, the accused was directed to further undergo two months' R.I.

2. The brief facts leading to filing of this appeal are that F.I.R. No.279 of 2003 (Exh.P.A) was registered against the appellant at Police Station, Rangpura, District Sialkot. The F.I.R. was registered by Mushtaq Ahmad, A.S.-I. (P.W.1) vide Rapt. No.17, dated 18-10-2003, at 2-05 p.m. on a complaint (Exh.P.C) drafted and sent by Ghulam Muhammad, S.-I. along with P.W.3 Muhammad Amin, C/811, Gulzar Ahmad, , C/735. The said police officials were present at the overhead bridge in order to check/search drug trafficking. They received a secret information that one person whose name was later on became known as Muhammad Akram, present appellant, was selling Charas in the backside of the stadium. The information further disclosed that if a raid could be conducted, the accused would be apprehended. Accordingly, a raid was conducted at the pointed place. Pursuant to the raid, the appellant was arrested. The appellant in interrogation disclosed his name and on personal search Charas weighing 250 grams (P.1) wrapped in a polythene shopper was recovered from the right side pocket of his shirt. Out of the recovered Charas 10 grams were separated for sample. The remaining Charas was converted into a sealed parcel and accordingly entire Charas P.1 was taken into police recovery memo. Exh.D.A., hence, this case was made out.

3. After completion of the investigation, the S.H.O. concerned submitted challan/final report under section 173, Cr.P.C. before Court of Ilaqa Magistrate, who vide order dated 16-12-2003 sent up the case to the Court of learned Sessions Judge, Sialkot who vide his order dated 2-1-2004 entrusted the case for trial to the learned Additional Sessions Judge in terms of section 193, Cr.P.C. for a regular trial.

4. After the delivery of the copies of necessary documents, etc. in terms of section 265-C, Cr.P.C., the accused was charged-sheeted who pleaded not guilty and claimed to be tried. The prosecution produced P.W. Muhammad Mushtaq, A.S.-I. who had registered the F.I.R. (Exh.P.A) in pursuance of the complaint (Exh.P.C). P.W.2 Ghulam Hussain HC/ 1228 was also produced who had transmitted the sealed parcel of the Charas for sample to the office of Chemical Examiner, Lahore intact, after he had received the same from P.W.4 Nazeer Ahmad, 263/HC who had kept the same along with other sealed parcel of the Charas in the Malkhana which was intact. P.W.3 Muhammad Jamil, C/811 and P.W.5 Ghulam Ahmad, S.-I. who submitted the recovery memo (Exh.P.A) and complaint (Exh.P.C), also produced ocular account as well as evidence regarding the proceedings of the Charas (P.1). P.W.6 Muhammad Igbal, S.-1. also produced the Charas he had in his possession. The learned D.D.A. for State gave up P.W. Gulzar Ahmad, C/735 and also submitted report of the Chemical Examiner (Exh.P.E) and closed the prosecution case.

5. After close of prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C. who denied the allegations and claimed innocence. When asked as to why the case was made against him, the appellant stated, "the case has been registered against him with connivance of Sana Ullah, Constable who had animosity with him by his colleague police officials. The accused didnot opt to produce his defence evidence under section 340, Cr.P.C.

6. The learned A.A.-G. on behalf of the State while supporting the prosecution allegations, inter alia, contended that accused was specifically involved in the F.I.R., the allegations of the F.I.R. were duly proved by the both recovery witnesses, P.W.3 and P.W.S. The evidence of Ghulam Ahmad, S.-I. also remained consistent with the statements of recovery witnesses and there was no material discrepancy or conflict between the version of the said witness. The defence failed to support that the witnesses had any enmity with the appellant or the case was made against him on request of Sana Ullah, Constable who was posted at the same police station some time ago. Similarly, P.W.6 Muhammad Iqbal, S.-I./I.O. also supported the version of other P.Ws. and prosecution story. In view of the above, the trial Court found the allegations and charges against the accused confidence-inspiring, consistent and deserved to be believed. The learned trial Court believed ocular account, recovery evidence and held that prosecution succeeded to prove its case without any shadow of doubt and convicted the appellant under section 9(b) of Control of Narcotic Substances Act, 1997 thereby sentenced to 10 months' R.I. He was further fined in the sum of Rs.50,000 and in default of fine he was required to undergo two months' R.I. However, benefit of section 382-B, Cr.P.C. was given.

7. The learned counsel for the appellant after arguing at some length suggested that accused had already undergone a substantial term of sentence, therefore, the remaining period may be reduced to having been already undergone.

8. The learned counsel for the State has not resisted the request of the learned counsel for the appellant.

9. We have gone through the judgment of the learned trial Court and also record of the case. We agree with the conclusion of the trial and do not find serious defect with the evidence adduced against the appellant, therefore, agree with the decision of the learned trial Court. However, the allegation was of 250 grams of Charas recovered from the possession of the appellant, therefore, while maintaining the conviction we reduce the sentence to the period already undergone by the appellant, which we consider will meet the ends of justice, particularly in view of meeting of minds on this point of both, the learned counsel for the appellant as well as for the State. Therefore, the appellant is ordered to be released forthwith if not required to be detained in any other case. The appeal stands disposed of in the above terms. H.B.T./M-1287/L??????????????????????????????????????????????????????????????????????????????? Order accordingly.