2005 PLP 1949 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Appellant Khan Sahib through instant Jail Appeal, has called in question the judgment/order of learned Sessions Judge/Judge Special Court, Nowshera dated 24-5-2005, passed in Hadd Case No.14 of 2005, whereby the appellant has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to two years R.I. and a fine of Rs.20,000 or in default to undergo further six months S.-I. with benefit of section 382-B, Cr.P.C.

2. Succinctly, the prosecution case is that on receipt of complaints that accused Khan Sahib runs narcotic business in his wood stall situated in Mohallah "Mitha Khel", Nowshera, police party, headed by S.I. Muhammad Jan P.W., raided the said shop on 22-2-2005 at 1715 hours and apprehended the accused. The personal search of the accused led to recovery of Charas and cash amount of Rs.225 from his pocket. The Charas was weighed and found 50 grams. The further search of the accused also resulted into recovery of Charas lying beneath the pillow. On weighing, it came to be 1000 grams. A meager quantity i.e. 5 grams each was separated from the contraband material for analysis. The remaining was sealed into separate parcel. The accused was formally arrested and a case was registered against him under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 9(c) of the Control of Narcotic Substances Act, 1997.

3. On completion of investigation, the formal challan against the accused was put in Court. Charge was framed against the accused on 8-3-2005, to which he pleaded not guilty and claimed trial.

4. During the trial, prosecution examined five witnesses, namely, S.-I. Rehmanullah (P.W.1), S.H.O. Shamsher Ali (P.W.2) S.-I. Muhammad Jan (P.W.3), S.-I. Fazal Rehman (P.W.4) and HC Noor. Said (P.W.5). After closing prosecution evidence, the accused was examined under section 342, Cr.P.C., wherein he denied the allegations but declined to be examined on oath or to produce evidence in his defence.

5. The learned trial Judge after having gone through the material available on the file in the light of the arguments addressed before him by learned counsel for the parties, passed the impugned judgment in terms as stated above, holding that prosecution has succeeded to establish its case beyond shadow of reasonable doubt and no ill-will or motive has been shown on the part of the Investigating Officer for falsely implicating the accused in this case.

6. In support of appeal, Miss Farhana Marwat Advocate representing the appellant contended, inter alia, that learned trial Judge had not appreciated the material on record in its true perspective and has failed to assess the prosecution evidence in judicial scale and has based his findings on conjecturers and surmises; that there are material contradictions and discrepancies in the statements of prosecution witnesses which make the prosecution story doubtful; that no private witness has been cited by the Investigating Officer at the time of investigation and requirements of section 103, Cr.P.C. had been flagrantly violated in spite of the fact that the alleged recovery was effected from populated area; that the Investigating Officer did not investigate the case in proper manner and there were some serious lapses in the process of investigation which had vitiated the trial; that no site-plan was prepared by the Investigating Officer of the place of occurrence which fact falsifies presence of prosecution witnesses on the spot and that the alleged contraband samples remained with the police for twelve days before sending the same to the office of Chemical Examiner and, as such, the report of the examiner is of no evidentiary value. Concluding the arguments, she maintained that sentence already undergone by the appellant is enough to serve the interest of justice and the intents of Control of Narcotic Substances Act, 1997. To supplement the contentions reliance was placed on Attaullah v. The State and another (2005 YLR 5 Peshawar).

7. On the other hand, Mr. Muhammad Saeed, Learned Additional Advocate-General appearing on behalf of the State, while defending the impugned judgment of conviction submitted that the appellant was found in possession of huge quantity of Charas; that the impugned judgment is in accord with the weight of evidence on record; that no ill-will or motivation has been shown on the part of the police for false implication and that there is no such material contradictions, on the basis of which trial of the case can be said to have been vitiated.

8. We have considered the respective contentions advanced by the learned counsel for the parties and have gone through the evidence minutely.

9. The prosecution story in brief is that in consequence of the complaints received from the inhabitants of the locality that accused appellant deals in narcotics business in his fire wood stall, a police party headed by S.-I. Muhammad Jan (P.W.3) raided the said stall on 2-2-2005 at 1715 hours and recovered the Charas in question from possession of the accused appellant. The factum of apprehension and recovery of Charas has been proved by the complainant, who carried out investigation and HC Noor Said (P.W.5) one of the marginal witnesses to recovery memo. Exh.P.W.3/1. A meager quantity was separated out of the seized property and sent to analyst. The report of the chemical examiner is in positive.

10. Both the witnesses are fully consistent on all important material particulars and have not waivered at all. They were subjected to lengthy and searching cross-examination but they stood to the test successfully. The contention of the learned counsel for the appellant that on material particulars prosecution evidence is inconsistent, contradictory and doubtful, therefore, the same even in absence of defence, evidence cannot result into conviction of appellant, is misconceived. Their evidence has established that the Charas in the above quantity was recovered at the above given date, time and place. Defence could not prove as to why police would involve the appellant falsely especially when none of the raiding had any enmity against him. The prosecution witnesses had made consistent statements on material points and the appellant has failed to point out any discrepancy in their statements. We may also observe that the discrepancies alluded to by the learned counsel for the appellant are not significant as to rob the above mentioned witnesses of their credence. The learned trial Court has rightly believed their evidence.

11. The contention concerning violation of section 103, Cr.P.C. seems to be fallacious when examined in the light of provisions as contained in section 25 of the Act, which provides exclusion of section 103, Cr.P.C. Police witnesses are as good witnesses as any other witness, unless any mala fide is established against them. Their deposition cannot be brushed aside simply on the bald allegation that they belong to police department Needless to emphasize that recovery cannot be treated as violative of the provision of section 103, Cr.P.C., unless it is shown that there is enmity between the police officials who appeared as witnesses and the accused or there was an ill-will on the part of the said police officials. The evidence of police stands at par with of the any witness from public but subject to the test of cross-examination. In this regard reference can be made to Muhammad Hanif v. The State (2003 SCMR 1237).

12. The factum of recovery has been proved and there is no doubt that the substance allegedly recovered was found Charas by the Chemical Examiner in his report. It is worth-mentioning that no question worth the name was asked from the Investigating Officer regarding alleged enmity between the appellant and the police. So far as the delay in dispatch is c concerned, it has been held by the superior Courts that sending of recovered material to the Expert with delay can only be termed fatal to the prosecution case in case the defence has been able to establish malice on the part of the police. In this case no malice has been attributed to the Investigating Officer. The said contention of the learned counsel is of no benefit to the defence.

13. The learned counsel for the appellant also contended that there were some serious lapses in the process of investigation which had vitiated the trial. However, she has not been able to point out any so called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial and caused dent in the prosecution case.

14. The submission of the learned counsel for the appellant, that entire recovered narcotic should have sent to Chemical Examiner and lapse of the prosecution in this behalf, should be construed to hold that the appellant is only liable to the extent of 5 grams, is equally without substance. We feel that taking of small quantity for Chemical Examiner was enough to prove that entire recovered material was contraband.

15. The submission of the learned counsel for the appellant that no site-plan was prepared by the Investigating Officer of the place of occurrence, which fact falsifies presence of prosecution witnesses on the spot, is equally without substance. The failure on the part of the Investigating Officer amounts to an irregularity and does not seem to have prejudiced the interest of the appellant. In the result and for the foregoing reasons, we are satisfied that there was sufficient evidence on record led by the prosecution against the appellant which conclusively proved that the appellant was guilty of the offence alleged against him. The learned trial Judge has already taken a lenient view in the matter. We do not feel inclined to accept the request of the learned appellant's counsel to reduce the sentence to the one already undergone. The appeal having been found without substance, stands dismissed and the impugned order is maintained. H.B.T./517/P Appeal dismissed.