2007 PLP 46 (MLD)

SYED SAJJAD HUSSAIN SHAH, J.-Appellant Fazal Nabi through the instant appeal has challenged the vires of judgment, dated 5-4-2004 passed by the learned Judge, Special Court, C.N.S.A., Islamabad whereby he convicted him under section 9(b) of the Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for life with a fine of Rs.50,000, in default whereof to further undergo simple imprisonment for six months with benefit of section 382-B, Cr.P.C.

2. The prosecution case as per F.I.R. is that on 12-9-2002, the complainant along with other police officials was present at Faizabad Bus Stop. At about 11.00 A.M. two persons came towards the bus stop holding a black coloured shopping bag and a "Gathri" of clothes. On seeing the police party both of them tried to slip away, whereupon, they were suspected and apprehended by them. They disclosed their names as Fazal Nabi and Banaras. The Gathri held by Fazal Nabi was sorted out by the S.-I., which led to the recovery of charas in the shape of littars, thirty four in number and on weighing it was found 5 kilograms charas. A small quantity of Charas from each littar slab, total ten grams of Charas, was separated for Chemical Analysis. Separate sealed parcels were prepared and taken into possession. The S.-I. drafted the complaint and sent the same to the police station through Muhammad Nadeem LHC for registration of the case N.P.

3. After completion of investigation, the appellant was found guilty and a report under section 173, Cr.P.C. was submitted before the trial Court. The learned trial Court formally charged the appellant to which, he pleaded not guilty and claimed trial.

4. The prosecution in order to prove its case produced five witnesses in all namely Muhammad Gulfraz, A.S.-I. (P.W.1), Shafqat Abbas, LHC (P.W.2), Muhammad Nadeem Akhtar, LHC (P.W.3), Muhammad Akram, S.-I. (P.W.4) and Zafar Iqbal, S.-I. (P.W.5). The prosecution in order to strengthen its case also tendered in evidence the documentary evidence. The statement of the appellant was recorded under section 342, Cr.P.C. in which he pleaded his innocence and stated that the P.Ws. have deposed falsely against him simply to support the false case. The appellant also produced in defence Muhammad Sharif as D.W.1. However, he did not opt to appear on oath under section 340(2), Cr.P.C. in disproof of the prosecution allegation. The learned trial court after conclusion of the trial convicted and sentenced him as mentioned above.

5. It is contended by the learned counsel for the appellant that there are serious contradictions in the statements of the P.Ws. which make the prosecution case highly doubtful; charas was not recovered from the exclusive possession of the appellant; no offence under section 9(B) of the Control of Narcotic Substances Act, is made out from the facts and circumstances of the case; the sentence is harsh and severe; the learned trial Court miserably failed to prove its case beyond any - shadow of doubt.

6. Conversely, the learned counsel for the State opposed the instant appeal vehemently.

7. We have heard the learned counsel for the parties and gone into the record with their assistance. .

8. The prosecution has substantiated its case through the production of oral as well as documentary evidence. P.W.3 and P.W.4 were members of the police party and were on patrolling at Faizabad. At the relevant time, the complainant was apprehended at 11.00 a.m. having "Gathri" in his hand. The statements of P.W.3 and P.W.4 have been reappraised and we do not find any material contradiction either in the prosecution version as given in the F.I.R. or deposition made by these witnesses. A huge quantity of Charas weighing 5-Kilograms was recovered form the possession of the appellant.

9. The prosecution witnesses have been cross-examined but nothing has been elicited from their statements. The appellant recorded his statement under section 342, Cr.P.C. and did not appear as his own witness on oath under section 340(2), Cr.P.C. The appellant produced in defence Muhammad Sharif whose statement was recorded by the trial Court as D.W.1. He has not made any confidence-inspiring statement, which could displace and diminish the effect of prosecution evidence brought on the record. He too stated that he was not present at the place at the relevant time when recovery was effect from the appellant. The submission made by the learned counsel for the appellant that the recovery has been effected in violation of section 103, Cr.P.C. is also devoid of any force. Admittedly, the recovery of narcotic substance has been made in view of the provision of section 25 of the Control of Narcotic Substances Act, 1997. The said provisions of Special Statute specifically excludes the application of section 103, Cr.P.C. It has now been settled by the Hon'ble Supreme Court of Pakistan that police officials are competent witnesses and their testimony cannot be discarded merely for the reasons that they are police employees. The case of Muhammad Azam v. The State (PLD 1996 SC 67) may be referred in this context. We have also found from the record that the evidence of c recovery in respect of the quantity of narcotic substance recovered and for sending it for chemical analysis is consistently established by the different prosecution witnesses. The report of the Chemical Analyst in respect of the substance is positive.

10. The upshot of the above discussion is that the appellant has failed to make out a case for acquittal, therefore, this appeal being of any merit is dismissed.

11. Adverting to the quantum of sentence, we find that the appellant is first offender and has no previous record, therefore, the sentence of the appellant is reduced to seven years whereas his fine is reduced to Rs.25,000, in default whereof to further undergo three months simple imprisonment with benefit of section 382-B, Cr.P.C.

12. With the above modification, this appeal is dismissed. S.M.B./F-43/L Appeal dismissed.