2010 PCr (PLP)

IJAZ AHMAD CHAUDHRY, J.

Through this jail appeal Muhammad Azam and Iftikhar Ahmad alias Ali appellants have challenged the judgment dated 25-3-2006 handed down by the learned Additional Sessions Judge, Lahore whereby they have been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life each with a fine of Rs.50,000 each or in case of default in payment of fine to further undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. was also extended to both the appellants.

2. The prosecution story unfolded in the F.I.R. is that on 11-8-2003 the complainant Sajwar Tariq, S.-I. along with other police officials was present at Muslim Town Morr when he received a secrete information that two Pathans who used to sell narcotics in Vehicle No.9855-LRK were coming towards Wandat Road, Lahore for selling of narcotics and if they were checked a huge quantity of Charas could be recovered from their custody. The complainant constituted a raiding party and when the said vehicle reached near Butt Sweet shop it was stopped. The accused Muhammad Azam was driving the vehicle while Iftikhar Ahmed alias Ali was sitting on the front seat. On the search of car 12 packets of charas weighing 12 Kilograms each were recovered from the dickey of the car from each packet 10 grams charas was separated for sending the same to the Official of the Chemical Examiner.

3. After completion of the investigation report under section 173, Cr.P.C. was submitted before the learned trial Court. Charge was framed against the appellants to which they pleaded not guilty and claimed a trial and the prosecution, to prove the guilt of the appellants produced six witnesses. P.W.4 Hafeez Akram, Constable and P.W.5 Muhammad Ashraf Javed, S.-I. were the recovery witnesses while P.W.6 Sajwar Tariq, Inspector was the complainant of the F.I.R. as well as the Investigating Officer. At the time of closing the prosecution evidence report of the Chemical Examiner Exh.PD was placed on the record and statements of the appellants were recorded under section 342, Cr.P.C., who they denied the allegation levelled upon them and professed their innocence before the learned trial Court. On a question why this case against him Muhammad Azam appellant replied as under: - "I had about Rs.2 Lacs with me, which were snatched by the Investigating Officer and to avoid the consequences of this he concocted this false case against me. The P.Ws. are subordinate to the Investigating Officer/complainant so they deposed against me as they were all police officials who are interested and inimical towards me due to above said reason." Appellant Iftikhar Ahmad alias Ali took the following plea:-- "The story of the prosecution is false. I was abducted by the complainant/Investigating Officer P.W.6 from Lorry Adda Badamibagh, Lahore and I was kept in illegal detention by the complainant/Investigating Officer. At the time of occurrence of abduction, I had Rs.97,000 with me and the said amount was also snatched by the complainant/Investigating Officer and later on I was involved in the present case by the complainant/ Investigating Officer only with the purpose and object to usurp the above said amount."

4. The doctor Muhammad Safdar had been produced before the learned trial Court as CW

1. The learned trial Court after hearing the arguments passed impugned judgment and convicted and sentenced the appellants as mentioned and detailed above which is being assailed through the present appeal.

5. The learned counsel for Iftikhar Ahmad alias Ali appellant contends that the appellant was just sitting in the car on front seat and he was not driving the same, therefore, he was not liable for the recovery of contraband from the dickey of the car. It is further contended that according to P.W. Amanat Ali, HC/8347 the custody of contraband had been handed over to Shaukat Ali C/1464 on 11-8-2003 while P.W.2 Shaukat Hussain stated that it was incorrect to suggest that neither the Moharrir handed him over the parcel nor he returned the road certificate to him after deposit of the parcel on 16-8-2003 while CW.1 who is Chemical Examiner stated that the samples were received on 15-8-2003. The fact of preparation of recovery memo. had not been mentioned in the case-diary. According to P.W.3 the contraband was brownish while P.W.6 stated that it was black. The samples of contraband had not been taken from each slab and it cannot be said that contraband recovered was narcotic substance. Nothing had been recovered from the personal search of the present appellant. Although the recovery had been effected from a thorough populated area yet no private person from the place of recovery had been associated with the investigation. As the complainant had himself investigated the case in hand, therefore, his credibility is doubtful. Reliance is placed on 1999 SCMR 543 wherein the person who was found sitting on the front seat was excluded by the Shariat Appellate Bench of the Supreme Court. Reliance is also placed on 2007 PCr.LJ 483, 2009 YLR 646 wherein it is held that the recovery had been effected from the thorough populated area, but no public witness was associated with the investigation and the appellant was declared innocent was only driving a car.

6. On the other hand the learned Deputy Prosecutor-General opposes the appeal and contends that recovery had been effected from the car and both the appellants were responsible for the said recovery. The prosecution has amply proved the guilt of the appellants to the hilt and, therefore, the appellants had been rightly convicted and sentenced by the learned trial Court.

7. We have heard the learned counsel for the parties and have perused the record. It has been observed that prosecution had examined two witnesses to prove the recovery. P.W.4 Hafeez Akram, Constable had fully supported the prosecution case and had stated that the narcotic substance was recovered from the car which was being driven by Muhammad Azam appellant and Iftikhar Ahmad alias Ali was sitting on front seat of the car. He had been put to cross-examination and he successfully answered the question put to him regarding recovery of contraband. During cross-examination he admitted that he did not know the exact number of total slabs of the narcotic and subsequently states that the sample was taken from each of the twelve packets but not essentially from every slab. Similarly P.W.5 Muhammad Ashraf Javed, S.-I. stated that there were many slabs present at each small packet and he had also stated that he could not recollect the exact number of each slab. However, he stated that sample had been taken by the Investigating Officer from each slab of a packet and the total were twelve in number. Similarly P.W.6 Sajwar Tariq, Inspector also claimed that Charas for sample was separated from only one chitter out of each packet but he could not give the exact number of chitters in each packet.

8. After going through the whole prosecution evidence we have observed that the recovery witnesses remained consistent on material points regarding the time, place and the manner in which the recovery was effected from the appellants. As far as presence of the appellants at the spot and recovery of 12 kilograms of charas from the dickey of the car is concerned the learned counsel for the appellants have remained unable to point out any material contradiction which will lead us to understand that the recovery of narcotic substance and presence of appellants was not established at the spot. Even otherwise none of the prosecution witnesses had any enmity to falsely implicate the appellants in the present case by planting a huge quantity of Charas upon them. The said recovery had found full support from the report of the Chemical Examiner which is positive and available on the record as Exh.PD. The learned counsel for the appellants has failed to create any dent in the prosecution version. It is now well-settled that the investigation even if is conducted by an incompetent police officer cannot be challenged during the trial as per section 156(2), Cr. P. C. The appellants have failed to show that as to what prejudice was caused to them by the conducting of investigation by the complainant. As such the conviction recorded against the appellants by the learned trial Court is maintained. So far as question of sentence is concerned we have considered the cross-examination on the above said three witnesses and the crux of the matter is that there were number of slabs in each packet and according to the consistent statement made during the cross-examination all the three witnesses stated that the samples were taken only from one slab out of one packet and there were total twelve packets which were recovered and each packet contained one kilogram of Charas. From the perusal of the statements it is found that the samples were not taken from each slab in one packet so we find that the contraband weighing 10 grams which was allegedly separated from each packet was not from the whole contraband, so the appellants cannot be sentenced while taking into consideration the total contraband and the proviso of section 9(c) of Control of Narcotic Substances Act, 1997 does not attract. Hence we have not found it a fit case for maintaining the sentence of imprisonment for life which is reduced to imprisonment for 14 years each. However, the fine is maintained. With the said reduction in the question of sentence of the appellants, the impugned judgment stands modified and this appeal is disposed of accordingly. H.B.T./M-129/L????????????????????????????????????????????????????????????????????????????????? Sentence reduced.