2013 PLP 1822 (MLD)

ROOH-UL-AMIN KHAN, J.

By way of instant appeal, appellant Abdul Hussain has challenged his conviction and sentence recorded by the learned Judge Special Court/Additional Sessions Judge, Hangu vide judgment/order dated 4-4-2012, in case F.I.R. No.374, dated 26-6-2011, registered under section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Hangu, whereby he was convicted under section 9(c) of the CNS Act, 1997 and sentenced to 3 years' R.I. with a fine of Rs.50,000 or in default whereof to undergo 3 months' S.I. Benefit of section 382-B, Cr.P.C. was extended to the appellant-convict.

2. According to prosecution case, on the basis of public complaints against the appellant regarding his dealing in the business of narcotics and availability of narcotics in his house, Islam-ud-Din Khan S.H.O., in company of ladies Constables Fozia, Shakeela and other police contingents under the supervision of Gul Jamal Khan DSP, raided the house of appellant on 26-6-2011. The appellant holding a white colour bag in his hand, on noticing the raiding party, tried to flee away, but his attempt was made abortive and was apprehended. On search of the bag, charas Gardha, weighing 3000 grams was recovered, out of which 5 grams were separated as sample for onward transmission to the FSL for chemical analysis. The appellant was formally arrested. The recovered contraband was taken into possession vide recovery memo Exh.PC, murasila was drafted and sent to the Police Station, on the basis of which, present case was registered.

3. On completion of investigation challan against the appellant was put in court, where he was charge-sheeted to which he pleaded not guilty and claimed trial. The prosecution in order to prove the guilt of appellant examined three witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath as his own witness under section 340(2), Cr.P.C. or to produce defence evidence. The learned trial court, on conclusion of trial, convicted and sentence him as mentioned-above.

4. We have heard the arguments of the learned counsel for the appellant and learned A.A.-G. and have gone through the record.

5. The contraband has been shown recovered from the direct possession of the appellant, which was taken into possession by the S.H.O. vide recovery memo. Exh.PC. Out of the recovered contraband, 5 grams was separated as sample and sent to the Forensic Science Laboratory for analysis, report whereof Exh.PZ is in positive. Islam ud Din S.H.O., who is the Seizing Officer and author of the murasila was examined as P.W.1. He reiterated the same version set forth by him in his muraila report. He has furnished detail account of the raid and recovery from the direct possession of the appellant. P.W.2 is Mutabar Khan DFC, who is marginal witness of recovery memo Exh.PC, vide which the contraband recovered from possession of the appellant was taken into possession by the S.H.O. in his presence. He has fully supported the version of the Seizing Officer (P.W.1). He testified that the memo correctly bears his signature. This P.W. has established his presence on the spot with the Seizing Officer at the time of recovery. Both the P.Ws. are the material witnesses of the episode. They are consistent on each and every material particulars of the occurrence. Opportunity of cross-examination had been provided to the defence and both the P.Ws. had been subjected to searching cross-examination but nothing material could be extracted which could be beneficial for the defence. No malice, ill will or enmity is attributed to the S.H.O. or witness of the recovery memo, who would foist the contraband on the appellant for their ulterior motive. The appellant in his statement while answering to a question that why the P.Ws. had been deposed against him, has answered that they are interested police officials and no independent witness has deposed against him. The mere fact that the P.Ws. are police officials would not be sufficient to discard their confidence inspiring and trustworthy testimony. Police witnesses are also as good witness like others and their testimony can be relied upon unless and until any ill will or enmity on their part towards the accused is proved by the defence. In the present society, the people are always reluctant to stand witness against the criminals to earn enmity for his family and children. Thus, recovery of the contraband from the direct possession of the appellant is established.

6. The sample separated from the recovered narcotics was sent to the FSL for chemical analysis and report whereof Exh.PZ is in positive, which further supplement the prosecution version. The prosecution has fully established the recovery of contraband narcotics from the direct possession of the appellant. However, nothing has been brought on record by the prosecution to prove previous involvement or conviction of the appellant in like nature cases. He is a man of advance age of 49/50 years. Thus, he being the first offender, we while taking lenient view, maintain his conviction and sentence, however, he is released on the existing bail bonds and placed on probation for good conduct, for the period of his sentence i.e. 3 years R.I., and is directed to appear before the Probation Officer of his concerned District on the first day of each month, till the period of expiry of his sentence. The Probation Officer shall maintain attendance record of the appellant. This appeal is disposed of in the above terms. AG/354/P Order accordingly.