2008 PLP 891 (MLD)

ABDUL SHAKOOR PARACHA, J.-Muhammad Sharif son of Natha and Muhammad Yaseen alias Wahabi son of Khushi Muhammad appellants through this appeal under section 48 of the Control of Narcotic Substances Act (XXV of 1997) impugn the judgment, dated 31-5-2004 passed by learned Additional Sessions Judge, Pattoki whereby the appellants were found guilty under section 9(c) of Control of Narcotic Substances Act (XXV of 1997) for having possession of 15-K.G. charas and 9-K.G. opium rapped in nylon bag in case registered vide F.I.R. No.293, dated '20-8-1999 offences under sections 9(c) of C.N.S.A., 1997 and under Articles 3/4 of PEHO at Police Station Saddar Pattoki. The appellants were sentenced to life imprisonment each and to pay fine of Rs.20,000 each. Benefit of section 382-B, Cr.P.C. was also awarded to the appellants.

2. Brief facts of the case as per F.I.R. lodged on the written complaint of Zahid Maqbool the then S.-I. CIA Staff, Pattoki are that on 20-8-1999 at about 5-00 a.m. he along with raiding party was present at the road leading to Khareper Sharif near the graveyard of Bula Ghari for checking of Narcotic. traffickers. The accused-appellants came there riding on a motorcycle without number plate from the side of Ghariyanwala Police Station Renala Khurd going towards Bula Ghari. Upon seeing the police party they suddenly turned back and a nylon bag fell down from the motorcycle. They tried to apprehend them but they made their escape good. After searching the nylon bag 15-K.G. charas and 9-KG opium were recovered from it. They separated 10-gram of Charas and 10-grams of opium for chemical examination. The samples as well as the remaining case property were sealed into parcels by putting seal bearing mark "S.F." All these parcels were taken into possession and a complaint was sent to the Police Station for registration of the case against the accused-appellants.

3. After completion of the investigation, report under section 173, Cr.P.C. was submitted in Court. Charge was framed against the appellants to which they pleaded not guilty and claimed trial.

4. To prove the case against the appellants prosecution produced six witnesses. Besides that reports of Chemical examiner of Charas as well as Opium were also tendered in evidence as Exh.D and Exh.E. Thereafter, the appellants made statements under section 342, Cr.P.C. Muhammad Sharif appellant stated that the complainant falsely challaned him on the instance of Liaqat Ali who is inimical to Yaseen, after taking considerable gratification from him. He himself is a close friend of Yaseen, hence, he has also been involved in this case falsely. The accused-appellant Muhammad Yasin stated that, he is 'resident of Police Station Renala Khurd whereas, the case has been registered at Police Station Saddar Pattoki. He has been falsely involved in the case. He and the accused Muhammad Sharif have been falsely involved on the instance of Liaqat Ali who is inimical towards him and has political differences with him. He further stated that Investigating Officer of the case was friend of Liaqat Ali. All the witnesses were police officials. He further stated that the case property produced in the Court was not charas and opium. Co-accused Muhammad Sharif has been involved in this case due to his friendship with him".

5. After hearing both the parties, learned trial Court proceeded to convict the appellants as aforesaid, hence this appeal.

6. Before us, learned counsel for appellants contends that this was a night occurrence; distance between the accused-appellants and the raiding party was 3-kanals, therefore, there was no occasion to identify the accused-appellants and named them in the complaint; identification parade was not held; parcels of charas and opium were kept by the Investigating Officer for 17 days and there was no chance of reaching the same to the office of chemical examine without tempering; sealed case property Exh.P.1 Charas and Opium Exh.P.2 were not opened in Court despite the request of the appellants; previous record of involvement of the appellants in similar cases was not proved. Lastly contends that admittedly the samples were taken from one piece of recovered charas and opium weighing 1-K.G. each which is fatal to the prosecution case.

7. Conversely, learned A.P.G. has opposed this appeal on the ground that both the accused-appellants were reached on motorcycle having with them nylon bag containing narcotics; recovery of narcotics has been proved by the prosecution by producing Muhammad Tufail A.S.-I. P.W.3 and Sh. Muhammad Zahid Maqbool P.W.4. Keeping of narcotics in custody and its safe transmission to the office of Chemical Examiner intact has been proved by the testimony of Muhammad Sarwar 331-C, P.W.1 and Rehmat Ali H.C. P.W.2. Report of Chemical Examiner of Charas Exh.PD and Opium Exh.PE were in positive which is proof of the fact that narcotics were recovered from the appellants; the prosecution has proved the case against the appellants beyond any shadow of doubt; the appellants were rightly found guilty and convicted by the learned trial Court.

8. We have heard the arguments of the learned counsel for the parties and perused the record with their assistance. Recovery of charas and opium has been proved by the prosecution by producing Sh. Muhammad Zahid Maqbool P.W.4 who was posted at CIA staff Pattoki at that time. In his statement, he disclosed that the accused-appellants were previously known to him as they were narcotic traffickers. Statement of Sh. Muhammad Zahid Maqbool P.W.4 is corroborated by another recovery witness namely Muhammad Tufail A.S.-I., P.W.3. In cross-examination, the Defence could not create any dent in the evidence of the said witnesses. The case property 15-K.G. charas Exh.P.1. and 9-K.G. Opium Exh.P.2 were produced in the Court. Keeping of the sealed parcels containing charas and opium in safe custody and delivery of the same intact in the office of Chemical Examiner Lahore was proved on the basis of testimony of Muhammad Sarwar C-331 P.W.1 and Rehmat Ali H.C. P.W.2. Reports of the chemical examiner Exh.PD and Exh.PB were tendered in evidence which are positive. The appellants alleged that P.W.4 Sh. Muhammad Zahid Maqbool Staff Officer falsely involved them in the case on the instance of one Liaqat Ali who is inimical to Yaseen after taking considerable gratification from him. The appellants have not produced any evidence in support of the plea that they were falsely involved in the case by the Investigating Officer on the instance of Liaqat Ali and the appellant Muhammad Yasin had any enmity with Liaqat Ali. The appellants have also not produced any evidence to show that Liaqat Ali was a friend of Investigating Officer-P.W.4 Sh. Muhammad Zahid Maqbool or he has taken any illegal gratification from him. The grievance of the appellants is that Investigating Officer has not associated any private person with the recovery proceeding which is not sustainable because section 25 of the C.N.S.A., 1997 has dispensed with the association of the private persons in the matter pertaining to recovery of narcotics.

9. So far as the contention of learned counsel for appellants that Sh. Muhammad Zahid Maqbool P.W.4. Staff Officer (CIA Staff Pattoki) was not authorized to conduct raid and to effect recovery of narcotics are concerned, the same has no force, because in the instant case P.W. Sh. Muhammad Zahid Maqbool S.-I. was accompanied by other officials/officers of CIA Staff and Muhammad Ashraf A.S.-I. who was posted at Police Station Saddar Pattoki at that time as it is evident from the complaint Exh.PB. Furthermore, the investigation in this case was also conducted by P.W.5 Muhammad Rafique A.S.-I. and P.W.6 Muhammad Yaqoob S.-I. who were posted at Police Station Saddar Pattoki at that time.

10. There is also no force in the contention of the learned counsel for the appellants that the recovery of narcotics cannot be believed because the narcotics was not recovered from the appellants or from any building. In the instant case, nylon bag contained narcotics was dropped on the ground suddenly when the accused-appellants returned back at the time of seeing the police party. In cross-examination P.W.4 stated that the entire charas was in the pieces weighing 1-K.G. each separately and similar is the position of opium. I took only 10-grams of charas for sample from one pieces of Charas and 10-grams of opium from one piece. All the pieces of opium and charas were weighed separately. In view of the above, it is proved that 10-grams of charas and opium were taken from one piece of charas and opium weighing 1-K.G. as samples from recovered narcotics for the purposes of chemical analysis and the reports of the chemical examiner were positive. Therefore, it transpired no doubt that from the total recovered narcotics only one Kilograme of Charas and one Kilograme of Opium were proved to be charas and opium. In case reported as Muhammad Hashim v. The State (PLD 2004 SC 856) while interpreting the provisions of section 9(c) of Control of Narcotic Substances Act (XXV of 1997 and after appreciating the evidence the Hon'ble Supreme Court of Pakistan had observed that, "record and recovery memo. showed that 4-grams of Charas was taken as sample out of total of 288 rods and nothing was available on record to show whether the sample for examination by the Chemical Examiner was taken out from each rod to ascertain that 288 rods were that of Charas or some other commodity having resemblance with the colour of Charas like oil cake (Khal) etc. Presumption, in given circumstances of the present case, was that sample was taken out from only one rod. So far as the remaining rods were concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the rods of Charas or otherwise." In case reported as Waris Khan and 2 others v. The State (2006 SCMR 1051) while interpreting the provisions of section 9(C) of Control of Narcotic Substances Act (XXV of 1997) the Hon'ble Supreme Court of Pakistan had held that, "admittedly only one packet of charas and one packet of opium was sent to Chemical Examiner for the purpose of analysis and to that effect, the report was positive. It was held that effect of omission and inefficiency of the officer concerned was that only a small amount of alleged total was proved to be Charas and opium. Supreme Court maintained the conviction but reduced the sentence from imprisonment for life to ten years and also fine from Rupees one million each to Rupees two hundred thousand." On the mandate of cases reported as Muhammad Hashim (PLD 2004 SC 856) and Waris Khan and 2 others (2006 SCMR 1051) supra we observe that samples were taken from only one piece of charas and Opium weighing 1-K.G. So far remaining pieces of narcotics are concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the pieces of Charas and Opium or otherwise. Therefore, on the basis of prosecution evidence and the plea taken by the appellants-accused discussed and answered by the learned trial Court we hold that the prosecution was able to prove the case against the appellants beyond any shadow of doubt. So far as sentence is concerned, since one Kilogram Charas and one Kilogram Opium of the alleged total narcotics is proved to be the Charas and opium, therefore, while upholding the conviction the appeal is partly allowed qua the sentence. Consequently, the sentenced of imprisonment for life each awarded to the appellants-accused is reduced to 10 years' R.I. each. However, sentence of fine amounting to Rs.20,000 (Rupees twenty thousand) each is maintained. In default of payment of fine, the appellant shall further undergo six months R.I. H.B.T./M-61/L Appeal partly allowed.