2018 PLP 9 (YLRN)

TARIQ SALEEM SHEIKH, J.

This is an appeal against judgment dated 03-07-2015 passed by the learned Additional Sessions Judge, Multan, in case FIR No. 408/2014 dated 29-07-2014 registered at Police Station Makhdoom Rasheed, District Multan, whereby the Appellant was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the "CNSA"). The learned Additional Sessions Judge has sentenced the Appellant to six years' R.I. with a fine of Rs. 30,000/- and in default thereof to undergo simple imprisonment for a further period of six months. Benefit of section 382-B, Cr.P.C. has also been allowed to him.

2. The prosecution case is that the Appellant was previously arrested in case FIR No.407/2014 dated 29-7-2014, which was registered against him at the Police Station Makhdoom Rasheed, Multan, for an offence under section 9(c) of the CNSA. On 29-07-2014 at about 7:10 p.m., Bashir Ahmed S.I. (PW-4) was at Chak 5/T (which is within the territorial limits of Police Station Makhdoom Rasheed) in connection with the investigation of the said case along with the Appellant, and Muhammad Iqbal ASI and other police officials. During the course of investigation, the Appellant made certain disclosures and then led the police to his house and got recovered 1200 grams of heroin that he had buried outside its eastern wall adjacent to which there was an open cattle shed. The contraband was wrapped in a plastic bag and he dug the earth with his own hands to retrieve it. PW-4 Bashir Ahmed S.I. prepared five sealed samples of one gram each for chemical analysis. After that he made a sixth parcel of the remaining contraband (P-1), affixed his seal thereon and secured the same vide Recovery Memo Ex.PD. PW-4 Bashir Ahmed S.I. then sent the complaint Ex.PA to the S.H.O., Police Station Makhdoom Rasheed, through Ghulam Yasin 1449/C whereupon FIR No. 408/2014 dated 29-07-2014 supra (Ex.PA/1) was registered against the Appellant. PW-3 Muhammad Rafiq S.I. investigated this case and, on 21-08-2014, submitted an incomplete challan against the Appellant placing him in Column No.3 thereof.

3. The Appellant was indicted on 09-10-2014. He denied the charge and claimed trial. However, the said charge was subsequently amended on 28-01-2015.

4. In order to prove its case, the prosecution produced five witnesses. PW-1 Khadim Hussain ASI/Moharrar deposed that, on 29-07-2014, he received complaint Ex.PA and pursuant thereto chalked out formal FIR Ex.PA/1. He stated that on the same day PW-3 Muhammad Rafiq SI handed over to him six sealed parcels, i.e. one parcel of case property and five samples parcels of heroin, for safe custody. Samples were to be transmitted to the laboratory for chemical analysis. He further said that on 19-08-2014 he gave these samples to Riaz Hussain 1114/C for delivering the same to the Office of the Chemical Examiner at Lahore. He also got exhibited previous criminal record of the Appellant Ex.PB. PW-2 Riaz Hussain testified that he received five sealed parcels said to contain heroin from PW-1 Khadim Hussain ASI which he deposited in the office of the Chemical Examiner at Lahore intact on 20-08-2014. PW-3 Muhammad Rafiq deposed that he investigated this case and prepared rough site plan of the place of recovery Ex.PC. PW-4 Bashir Ahmed S.I., the Complainant of this case, was also a recovery witness of the contraband material along with PWs Muhammad Iqbal and Muhammad Irtaza. PW-5 Muhammad Iqbal ASI deposed that he had witnessed the proceedings as a result whereof heroin weighing 1200 grams was recovered from the Appellant. He attested Recovery Memo Ex.PD along with PW Muhammad Irtaza (given-up PW). The learned Assistant District Public Prosecutor, vide statement dated 17-04-2015, gave up PW Muhammad Irtaza 931/HC being unnecessary and closed the prosecution evidence after tendering the report of the Chemical Examiner Ex.PE.

5. On the completion of the prosecution evidence, the learned trial Court recorded the statement of the Appellant under section 342, Cr.P.C. The Appellant pleaded innocence. He denied the allegations levelled against him and refuted the evidence recorded during the trial. When asked as to why the case in hand was registered against him, he said that he had filed an application against the PW-4 Bashir Ahmed (the Complainant) before the CPO, Multan, and the said PW had foisted heroin on him to save his skin. The Appellant placed a photocopy of that application on record which was tagged as Mark-DA.

6. The Appellant did not opt to record his statement under Section 340(2) Cr.P.C. in disproof of the charge levelled against him. However, he produced one witness, DW-1 Muhammad Shahzad Hussain 4230/HC, Moharrar of P.S. Makhdoom Rasheed, Multan, in his defence. He produced Register No.19 pertaining to the era 2011 to 2015 and testified about certain entries made therein.

7. After the conclusion of the trial, the learned Additional Sessions Judge convicted and sentenced the Appellant as mentioned in the opening paragraph of this judgment.

8. The learned counsel for the Appellant argued that the Appellant is innocent and he has been falsely implicated in the instant case. He contended that all the witnesses in this case are from the police and the prosecution has not produced even a single independent/private witness who could corroborate their testimony. According to him, this omission has made the recovery doubtful, particularly when the Appellant has shown that the Complainant, PW-4 Bashir Ahmed, was inimical towards him. He next argued that the contraband was allegedly recovered from the Appellant on 29-7-2014 but the samples were deposited with the Chemical Examiner at Lahore on 20-8-2014 after a passage of 22 days and there is no justification for this delay. He contended that this was a violation of Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. As such, the report of the Chemical Examiner Ex.PE has no legal value and cannot be read against the Appellant. Lastly, the learned counsel argued that the prosecution evidence is discrepant and incoherent. He contended that there is at least one contradiction in the testimony of the PWs that has spoiled it altogether and has made it untrustworthy. To make this point he led us through the statements of the PWs. According to PW-1 Khadim Hussain ASI, PW-3 Muhammad Rafiq SI handed over to him five sample parcels each of which was said to contain 10 grams heroin. In contrast, PW2 Riaz Hussain, PW-4 Bashir Ahmed and PW-5 Muhammad Iqbal deposed that every sample was of just one gram.

9. On the contrary, the learned Deputy Prosecutor General representing the State supported the impugned judgment and argued that the prosecution has proved its case against the Appellant beyond any shadow of doubt. He submitted that the contradiction in the prosecution evidence pointed out by the learned counsel for the Appellant was either a slip of tongue by PW-1 Khadim Hussain ASI or a clerical mistake on the part of the staff of the trial Court. As such, this discrepancy is inconsequential. He further submitted that the Appellant himself got the contraband recovered by digging out the earth at a place which was in his exclusive knowledge. He lastly contended that the Appellant has failed to prove the motive for false implication that he had pleaded in his defence. A trivial complaint like Mark-DA can by no stretch of imagination be a cause for foisting such a huge quantity of narcotics.

10. We have heard the learned counsel for the parties and have perused the record.

11. The case of the prosecution hinges on the evidence of PW-4 Bashir Ahmad S.I. and PW-5 Muhammad Afzal ASI. We have observed that their statements are coherent and inspire confidence. These PWs have corroborated each other on all material points, including date, time and place of occurrence, the quantity of the recovered narcotics and the manner in which recovery was effected. The learned counsel for the Appellant laid a lot of emphasis on the contradiction created by the statement of PW-1 Khadim Hussain ASI when he stated that each of the five samples that PW-3 Muhammad Rafiq SI handed over to him contained 10 grams of heroin. We agree with the learned DPG that this contradiction has occurred owing to slip of tongue by PW-1 Khadim Hussain ASI or because of a clerical mistake on the part of the staff of the trial Court. There is also a possibility that this PW was mistaken or had forgotten the actual weight of the sample or was making an obliging statement. We have noted that the main recovery witnesses, namely, PW-4 Bashir Ahmed S.I. and PW-5 Muhammad Afzal ASI, are coherent on this point and their version is vouched by the report of the Punjab Forensic Science Agency Ex.PE as well as the entries contained in Register No.19 brought on record by the Appellant himself through DW-1 Muhammad Shehzad Hussain 4230/HC Moharrar and tagged as Mark-DB and Mark-DB/1.

12. As regards the other points urged by the learned counsel for the Appellant before us, suffice it to say that jurisprudence on these issues is very well settled by now. Section 25 of the CNSA excludes the applicability of section 103, Cr.P.C. Therefore, association of witnesses from the public is not mandatory in narcotic cases. Reliance is placed on "Aala Muhammad and another v. The State" (2008 SCMR 649) and "Muhammad Hanif v. The State" (2003 SCMR 1237). Furthermore, the testimony of police officials is as good as evidence of any other witness unless the accused is able to establish that the police witness who appeared against him had personal motive/mala fides to falsely implicate him in the offence. Reliance is placed on "Hakim Khan v. The State" (2013 SCMR 547), "Surraya Bibi v. The State" (2008 SCMR 825), "Riaz Ahmad v. The State" (2004 SCMR 988), "Naseer Ahmad v. The State" (2004 SCMR 1361), "Fida Jan v. The State" (2001 SCMR 36), "Muhammad Azam v. The State" (PLD 1996 SC 67) and "Muhammad Naeem v. The State" (1992 SCMR 1617). In the present case, the Appellant has attempted to show that the complainant, PW-4 Bashir Ahmed SI, was inimical towards him because he had made complaint Mark-DA against him. We find it hard to believe that a complaint like Mark-DA can be a cause for foisting such a huge quantity of narcotics. We are fortified in this opinion by the fact that the Appellant has a long criminal history (Ex.PB) and has even previously been involved in narcotic cases.

13. Finally, as regards the argument of the learned counsel for the Appellant that there was an inordinate delay of 22 days in sending the samples to the Chemical Examiner, we again point out that the law on this issue is settled. Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, are directory (and not mandatory) in nature. Mere fact that the samples were sent beyond the prescribed period of 72 hours would not be fatal unless the accused shows that the samples were tampered or he was otherwise prejudiced by the delay. For this, we respectfully rely on the cases reported as "Tariq Mehmood v. The State" (PLD 2009 SC 39) and "Sajjad v. The State" (2013 PCr.LJ 557).

14. For the above reasons, we hold that the prosecution has proved its case against the Appellant beyond reasonable doubt. Accordingly, we dismiss this appeal and uphold the impugned judgment of the learned Additional Sessions Judge, Multan. JK/A-56/L Appeal dismissed.