2008 PLP 1591 (YLR)

ABDUL SHAKOOR PARACHA, J.

Through this appeal Muhammad Amin son of- Hakim Ali impugns the judgment dated 16-11-2002 of the Additional Sessions Judge/Judge, Special Court, CNSA, Pattoki, whereby the appellant was found guilty of offence under section 9(c), Control of Narcotic Substances Act (XXV of 1997), for recovery of 5 Kg. Charas and sentenced to 14 years' R.I. with a fine of Rs. 1 lac, or in default in payment whereof, he was to undergo S.I. for six months. The appellant was, however, given the benefit of section 382-B, Cr.P.C.

2. Brief facts of the case are that P.W.5 complainant Javed Khan, A.S.-I. of Police Station Saddar, Pattoki, on 6-8-2000 at about 8-15 a.m. along with other police officials was present at Ghulam Phatak; on receipt of a spy information he stopped a bus coming from Pattoki and apprehended Muhammad Amin, appellant,' and from his possession got recovered a polythene shopper in which a Chaddar containing five packets, each packet containing one Kg. Charas and in total five K. g. Charas was recovered and 10 Grams of Charas out of each packet was separated for chemical analysis. Sealed parcels were prepared. Thereafter case vide F.I.R. No. 270 dated 6-8-2000 (Exh.PB) was registered. The appellant was charged, to which he did not plead guilty and claimed trial.

3. To prove the recovery of illicit Charas through recovery Memo. Exh.PA, which was attested and signed by Muhammad Akram and Muhammad Ayub, Constables, the prosecution produced said Muhammad Akram and Muhammad Ayub as P.Ws-2 and 3 as well as Javed Khan, A.S.-I./I.O. as P.W.S. The Chemical Examiner's report, which was positive, was produced as Exh.PD.

4. On the close of prosecution evidence, statement of the appellant under section 342, Cr.P.C. was recorded wherein he stated that, "I am innocent. Actually, Charas was recovered from Shafiq alias Sheeqi and Akram who were dealing in the business of narcotic in connivance with the police. One day police arrived at my house at the instance of Akram and Shafiq. The police demanded illegal gratification from me but I being a poor man could not fulfil their demand. Furthermore, I spent all my livelihood in the disease of Asthma. I am patient of a serious disease, so much so I cannot lift a weight of five grams and cannot imagine its transportation." He did not opt to appear as his own witness under section 340(2), C.P.C. nor he produced any defence evidence. After hearing the parties the learned trial Court convicted the appellant as aforesaid. Hence this appeal.

5. Before us, the learned counsel for the appellant has raised the following contentions in support of this appeal:-- (1) that Javed Khan, A.S.-I. P.W.5, was not competent to register the case or to investigate the same under the law; (2) that there is no independent witness from the locality associated by the recovery officer at the time of effecting the recovery of Charas; (3) that the alleged recovered Charas belonged to Shafique alias Sheeqi and Akram. They were let off by the police but the appellant being a poor man was involved in the case; and (4) that there are contradictions in the statements of the recovery witnesses and neither the name of the driver, cleaner or the name of the company of the bus was disclosed by the recovery witnesses.

6. On the other hand, the impugned judgment has been defended by the learned counsel for the State on the ground that the appellant was travelling in a bus and on checking huge quantity of Charas weighing 5 Kg. was found in his possession; 10 gram Charas out of each packet was separated and sent to the Chemical Examiner and report of the Chemical Examiner was Exh.PD; it is not necessary under the law to associate public witnesses at the time of recovery; there were no contradictions in the statements of the recovery witnesses and the defence of the appellant is not plausible.

7. Recovery of huge quantity of Charas, i.e. five K.gs, by the police has not been denied by the appellant. No reason whatsoever has been stated by the appellant for his false involvement in the case by the police nor it has been suggested so to any P.W. No doubt the recovery witnesses Muhammad Akram and Muhammad Ayub and the Investigating Officer Javed Khan, A.S.-I, P.Ws-2, 3 and 5 respectively, were employees of the police, but it is not mandatory in narcotic case under the special law, i.e. Control of Narcotic Substances Act, 1997, to associate the public witnesses at the time of recovery, because the same has been dispensed with under section 25 of the Act ibid. There are no material contradictions in the statements of the recovery witnesses, i.e. Muhammad Akram, Muhammad Ayub and Javed Khan, P.Ws.2, 3 and

5. The defence of the appellant that the Charas belonged to Akram and Shafique alias Sheeqi is not well-founded, because there was no reason for the police to let off the real accused and implicate the appellant in a false case. The Chemical Examiner's report Exh. PD is in positive. In this view of the matter, we are of the opinion that the prosecution was able to prove the case against the appellant for having in possession 5 Kgs. of Charas. The appellant has been rightly held guilty under section 9(c), CNSA, 1997. Section 9(c) of the Act provides punishment up to 14 years' R.I. The appellant is a patient of Asthma and the Investigating Officer while appearing as P.W.5 has admitted that in the complaint Exh. PB/1 he recorded the name of Muhammad Shafique alias Sheeqi and Muhammad Akram from whom the appellant allegedly used to take Charas for sale and the Charas belonged to aforesaid Shafique and Akram. It is also admitted that they were not apprehended nor any investigation was carried against them. In this view of the matter, we are of the opinion that the sentence of ten years' R.I. along with a fine of Rs. 50,000 (Rupees fifty thousand) would meet the ends of justice. For the reasons discussed above, while maintaining the conviction of the appellant, we reduce his sentence from 14 years' R.I to ten years' R.I. The sentence of fine is also reduced from Rs. One lac to Rs.50,000 and in default in payment whereof, the convict shall undergo S.I. of six months. He shall also be entitled to benefit of section 382-B, Cr.P.C. The appeal is dismissed. H.B.T./M-269/L Order Accordingly.