1988 P Cr (PLP)

Mian Muhammad Ajmal. Asstt. A.-G. for the State. Date of hearing: 26th October, 1985. Syed Muhammad Haider Zaidi son of Syed Baqir Hussain convict has filed this appeal against the order of his conviction, dated 9-7-1985, passed by the learned Additional Sessions Judge, Nowshera, whereby he was found guilty under Article 4 of Prohibition (Enforcement of Hadd) Order 1979 and on conviction was sentenced `to two years' R.I. and a fine of Rs.2,000 or in default of payment of fine was ordered to suffer R.I. for 6 months.

2. Facts of the case briefly stated are that Abdul Hamid I.H.C. of Police Station Railway, Peshawar Cantt. alongwith Alamzeb and Muhammad Shafiq F.Cs. were on duty on 2/DN Train from Peshawar to Attock. It was in between Peerpai and Khushhal Kot that the accused sitting near the door of the second class compartment was suspected by the police party. He was having a cloth bag. From it apart from other articles, one pant EXh.P.l was recovered which was searched and in it a plastic packet was found sewen, which contained 3 other packets, one of which contained 5 pories of heroin total weighing 13 grams; and the other two packets had 8 grams of Charas. These articles were taken into possession vide recovery memo. Exh . P. C . After arrest of the accused a Murasila was sent by A . S.I. Muhammad Saeed of Police Post Nowshera to the S.H.O. Police Station Railway, Peshawar Cantt. for registration of the case. Sample of the seized contraband was sent to the Chemical Examiner for analysis. After report of the Chemical Examiner and investigation of the case, complete challan :vas put in Court against the accused. At the trial, after framing the charge against the accused under section 3/4 of the Ordinance and denial of the accused having committed the offence, the prosecution was asked to prove the charge against the accused in Court.

3. In support of the prosecution case, Abdul Hamid, H.C. Abdul Malik H.C. and Muhammad Saeed, S.I. Line Officer, Police Lines, Peshawar were examined. Rest of the P.Ws. namely Alamzeb and Muhammad Shafi F.Cs. and Daulat Khan S.I. were present in Court and were abandoned as unnecessary by the Public Prosecutor. When examined under section 342, Cr.P.C. the accused denied the possession of the bag and the recovery of the Charas and heroin from him. When questioned about the recovery of the other articles namely one purse, one banyan, one bushirt, one pant recovered by the Investigating Officer in presence of the marginal witnesses vide memo. Exh.P.C./1, the accused stated that excepting the Identity Card and the ticket, nothing else was recovered from his possession by the police. In the end of his examination when he was questioned by the Court whether he wished to be cross-examined, he said, 'No' to it. No evidence in defence was produced.

4. The learned Additional Sessions Judge after taking into consideration the evidence referred to above, found the accused guilty of his having been found in possession of the aforementioned heroin and Charas. Hence on conviction sentenced him to the term mentioned above.

5. Learned counsel for the appellant challenged the order of conviction and argued that report of the Chemical Examiner which is available on the file does not satisfy the requirement of law, as the Chemical Examiner has not given details of his having formed the opinion that the substance was heroin or Charas. It was further contended that though the search was conducted inside the Railway compartment and many passengers were present at the relevant time at the place but no person from the public has been cited as a search witness. Hennp the recovery is highly doubtful. He relied on Muhammad Farooq v. The State 1985 PCr.LJ

778. It was further contended that the statement recorded under section 342, Cr.P.C. is not certified by the learned Additional Sessions Judge as required under section 364, Cr.P.C. nor has the accused been asked whether he wanted to be examined as his own witness as required under the law. Reliance was placed on Saeed Ahmad Khan v. The State 1985 PCr.LJ 2489. .

6. The learned Assistant Advocate-General, however, controverted this contention in his arguments. It was stated that the accused was apprehended from the Second Class' Compartment which fact is corroborated by the recovery of the Railway Ticket and his Identity Card. That the prosecution has specifically proved that the accused was in possession of a bag from which the substance in question was recovered That the recovery memo. has been proved through the statement of P.W.1, Abdul Hamid H.C. and it was not necessary in the circumstances of the case to insist that in such like cases the search is to be conducted in presence of the witness from the public. With regard to the report of the Chemical Examiner, it was argued that the defence of the accused was prepared by A.S.I. Muhammad Saeed (P.W.3) in which he was cited as a witness to the recovery memo. In the cross-examination, nothing was brought in the statement of this witness for creating doubt in the prosecution version of the occurrence. He frankly stated that other passengers were also present in the compartment and that he tried his best to get the public witnesses to the recovery memo. but nobody from the passengers was willing to be cited a witness. The minor discrepancy in his statement on the point whether the contraband were weighed inside the Railway Station or outside the Railway Station, has no material bearing on the prosecution case. His statement further is corroborated by Muhammad Saeed S.I. (P.W.3) wherein he states that while he was present in the Railway Station, Nowshera, 2/DN; Train had come from Peshawar and stopped at Railway Station Nowshera. P.W. Abdul Hamid

1. H . C . alongwith Alamzeb and Shafiq F. C . brought the accused present in Court alongwith a cloth bag which contained the heroin and Charas, the same were weighed and found to be 30 grams heroin and eight grams Charas sewed in the pant. On this he drafted the Murasila Exh.P.A./1 at the instance of the complainant and sent it for registration of the case. He further deposed to have taken into possession 3 packets of plastic of which one packet contained 5 contained 5 pories of heroin weighing 13 grams (Exh.P.1) and two plastic packets containing 8 grams Charas Exh.P.2 vide recovery memo. Exh.P.C. in presence of P.W.1 and his companions. He further deposed to have sent the sample of heroin and Charas in duly sealed parcel to the Chemical Examiner through the Superintendent of Police through a letter Exh.P.F./1. The result of the Chemical Examiner is EXh.P.G. and Exh.P.G./1 of the heroin and Charas respectively. He prepared the site plan Exh.P.B. at the instance of Abdul Hamid complainant and took into possession the other article referred to above through the said memo. Exh.P.C./1 in cross-examination, he admitted that it was Abdul Hamid P.W. who weighed the heroin and Charas and his statement was incorporated in the Murasila. From this evidence the recovery of the contraband is proved against the accused without any reasonable doubt. The report of the Chemical Examiner was not challenged in the cross-examination when the same was exhibited as a piece of evidence at the trial.

8. The contention of the learned counsel for the appellant that search was not witnessed by any witness from the public, has got no substance in view of the authority relied upon in the absence of any suggestion from the defence showing the motive for false involvement of the accused by Abdul Hamid P.W. The statement of the accused under section 342, Cr.P.C. is unexceptional and it has been certified by the learned Additional Sessions Judge under section 364, Cr.P.C. When questioned whether the accused wanted to make a statement, he stated to be innocent and did not volunteer to appear as his own witness and to be subjected to the cross-examination by the prosecution hence no objection could be raised to it.

9. The authorities relied upon by the learned counsel for the appellant are not applicable to the facts of the case. It is also not denied that criminal cases are to be decided on its own merits specially when the precedent cases relate to particular circumstances and facts of those cases. In this view of the matter, there is no substance in the contentions raised.

10. Keeping in view the quantity recovered from the possession of the accused, it would be in the interest of justice to set aside the order of the learned Additional Sessions Judge to the extent of the imposition of fine. Hence while rejecting this appeal and while maintaining the order of the learned Additional Sessions Judge with regard to the sentence of imprisonment, it is set aside to the extent of the fine of Rs.2,

000. With this modification of the sentence, this appeal is dismissed. M.Y.H./586/P????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.