2008 PLP 1047 (YLR)

ALI NAWAZ CHOWHAN, J.

Muhammad Akram appellant was convicted under section 9-B of the Control of Narcotic Substances Act 1997 by learned special Judge CNSA, Mianwali vide judgment dated 2-7-2002 in case F.I.R. No.270 dated 14-11-2001 registered at Police Station Saddar Mianwali and sentenced to four years R.I with a fine of Rs.5000 in default whereof to further undergo two months S.I. He was given the benefit of section 382-B, Cr.P.C.

2. Briefly the prosecution case is that on 14-11-2001 on a spy information Abdul Razzaq, Inspector/S.H.O. along with other police officials apprehended the accused and on his personal search 500 grams chars and 300 grams heroin was recovered out of which 10 grams chars and one gram heroin was separated for chemical analysis.

3. The prosecution to prove its case examined as many as four witnesses. Allah Dad S.-I. P.W.-1 drafted formal F.I.R. Exh.PA. Saghir Hussain Shah 112/C. P.W.-2 transmitted the sealed parcels containing chars and heroin to the office of Chemical Examiner, Rawalpindi. Amir Muhammad Constable No.583 PW-3 is the witness of recovery. Abdul Razzaq inspector/S.H.O. P.W.4 reiterated the contents of the F.I.R. The learned SPP after tendering the report of Chemical Examiner Exh.PE closed the case for prosecution. The accused was examined under section 342, Cr.P.C. He denied all the allegations and recovery of narcotics. He did not opt to appear as his own witness under section 340(2), Cr.P.C. but produced copy of F.I.R. mark-A in his defence.

4. Relevant excerpts from the statement in cross-examination of Abdul Razzaq, Inspector/S.H.O. (P.W.4) are reproduced below:-- "The accused was apprehended because the informer had described his appearance. The accused had hardly crossed 5-6 feet when he was apprehended. I do not remember if there was a vacant plot in front of the house of the accused. It is correct that I had crossed an open space to reach near the door of the house of the accused." "It is correct that in connection with that case another case of anti-corruption was registered against Allah Bakhsh, A.S.-I. of the same P.S. I do not know if Muhammad Ramzan the brother of the accused complainant in that case. It is correct that Allah Bakhsh, A.S.-I. was arrested from the P.S. and sent to jail. I do not know if Allah Bakhsh and the brother of the accused have entered into a compromise. It is incorrect to suggest that I made an effort to effect a compromise between them. It is incorrect to suggest that on 14-11-2001 a raid was conducted in the house of the accused and we had taken away cash of Rs.6000 one electric light. It is incorrect to suggest that the accused was brought in the P.S. where he was tortured to make a compromise with the brother of accused."

5. According to the learned counsel the house where the raid had been conducted was located in a thick locality and no search warrant was obtained. That the police was inimical towards the appellant and this is a case of false recovery.

6. In his statement under section 342, Cr.P.C. a similar plea was taken by the appellant in the following words:- "I am innocent. My brother Muhammad Ramzan had got an anti-corruption case registered against Allah Bakhsh A.S.-I. of P.S. Saddar. The local police had a grudge of that case. Abdul Razzaq present S.H.O. of P.S. Saddar made a complaint and pressurized the brother of the accused to enter into a compromise which was declined and due to that grudge, I was falsely implicated in the case: P. Ws. had deposed against me being police officials just to subordinates to S. H.O. /I.O. " But he did not produce any defence evidence to substantiate the plea taken.

7. The police had raided the premises and recovered the narcotics from house of the appellant. There is nothing to suggest any ulterior motive on the part of police. Since this was not established we therefore, uphold the order of conviction.

8. However, keeping in view all the circumstances of the case and the fact that the appellant has already suffered rigors of trial and a part of the sentence, and as we have also noted that he was unable to afford a counsel for his jail appeal and a State counsel had to be appointed and while treading on a safer path, we reduce his sentence to one undergo while we uphold the order of fine and sentence in lieu thereof. Disposed of accordingly. N.H.Q./M-333/L Sentence reduced.