2006 PLP 2668 (YLR)

ALI NAWAZ CHOWHAN, J.

Hassan Raza, Rizwan Ashiq and Farooq Masih, appellants, were tried by Mr. Zahoor-ul-Haq Rana, Additional Sessions Judge, Ferozewala in case F.

1. R. No. 194 of 2000 registered under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 with Police Station City Muridke. Vide judgment, dated 14-12-2001 they all were convicted under section 9(c) of Control of Narcotic Substances Act, 1997 and each of them was sentenced to undergo life imprisonment along with a fine of Rs.5, 00,

000. In default of payment of the fine the convict was to undergo R.I. for three years. Hassan Raza through Criminal Appeal No.614 of 2002 and Rizwan Ashiq and Farooq Masih through Criminal Appeal No.174 of 2004 have assailed the above said conviction and sentences. Both these appeals are being disposed of through this consolidated judgment.

2. According to the F.I.R. Exh.PA, which was lodged by Mumtaz Ali, S.I. the prosecution's case is that on 12-6-2000 the complainant along with Imdad Hussain, S.-I., Waris Ali, S.-I., Muhammad Amanat Ali, A.S.-I., and several Constables while sitting in a Police Vehicle were on patrol duty, when they received secret information that a famous proclaimed offender of a murder case and- drug tafficker, Hassan Raza alias Taidi and his two companions were standing at Narowal Chowk. They proceeded to that site and it is stated in the complaint that the appellants were apprehended and they were found in possession of a sack, which Hassan Raza, appellant, was carrying on his shoulder. Which when opened had 15 packets of Charas and 10 packets of Charas powder etc. Rizwan Ashiq appellant was also carrying narcotic, which was recovered and of weight five kg of Charas and 4 kg of charas powder. The third appellant, Farooq Masih, likewise was found in possession of 5 kg. of Charas. It was stated that out of recovered quantities of narcotics 10 grams of Charas and 10 grams of Charas powder were separated and sealed into separate parcels and these were dispatched to the Chemical Examiner. The case was investigated and the accused were challaned to face trial.

3. The prosecution examined six witnesses to establish the factum of recovery. Muhammad Latif P.W.1 Constable, is the formal witness, who carried the parcel to the office of Chemical Examiner on 26-6-2000. Mushtaq Ahmad, P.W.2, is the scribe of formal F.I.R. Exh.PA/1. Muhammad Boota, P.W.3, is also a formal witness, who kept the parcels in Mall Khana and later on transmitted the same to the office of Chemical Examiner. Muhammad Ali (P.W.4) supported the prosecution's case. Imdad Hussain, S.I., P.W.S, who was accompanying the raiding party. He attested the recovery memos. Muhammad Anwar, P.W.6, was Inspector CIA, Sheikhupura, on the day of recovery. He arrested the accused and sent them to judicial lock-up on 14-6-2000.

4. In their statements under section 342, Cr.P.C. the case of the appellants was that they had been falsely implicated in this case and no recovery had been effected from them. Rizwan Ashiq and Farooq Masih stated that he had been involved in this case because of relationship and friendship with Hassan Raza, the main culprit. The accused did not appear to make statement on oath under section 340(2), Cr.P.C. It is also pertinent to state that Hassan Raza while being proceeded in this case was convicted and sentenced in a murder case and became condemned prisoner.

5. The basic argument of the learned counsel for appellants is that the alleged narcotic substance recovered from the appellant was not produced in the Court during the trial. It is also submitted by them that the case property was never exhibited nor this fact was put to the accused while they were examined under section 342, Cr.P.C. In this respect they placed reliance on the case of Riasat Ali v. The State (2004 PCr.LJ 361) to contend that non-production of the alleged recovery narcotic substance in the Court is fatal to the prosecution case.

6. The learned Public Prosecutor, when confronted with this situation conceded that the incriminating aspect of the evidence will now be the quantity recovered and sent to the Chemical Examiner. Because the Chemical Examiner report was put to the appellants in their statements under section 342, Cr.P.C. Therefore, the offence under section 99(a) of the Control of Narcotic Substances Act, 1997, according to him, will be made out and the appellants be punished for this offence.

7. We have heard the Iearned counsel for parties and have gone through the record. The record shows that the recovered narcotic substance was never exhibited as a case property or it was put to the accused/appellants during their statements under section 342, Cr.P.C. Non-production of the recovered substance in the Court during the trial is fatal to the case of prosecution. The narcotic substance which was taken as sample and sent to the .Chemical Examiner for analysis is proved to be narcotic substance in view of the report of Chemical Examiner and this report had been put to the appellants during their statements under section 342, Cr.P.C. This brings the case of appellants under section 9-A of the Control of Narcotic Substances Act, 1997. We therefore, convict the appellants under section 9-A ibid and reduce their sentences to R.I. for one year each besides a fine of Rs.5,000 each. In default of payment of fine the defaulter appellant shall undergo Simple Imprisonment for two months. Both the said appeals stand partly allowed. A copy of this judgment shall be sent to the learned trial Court for recovery of fine and their commitment of Prison in case of its default. H.B.T./H-20/L Order accordingly '