P L D 1993 Federal Shariat Court 17 (PLP)

This appeal is directed against the judgment dated 11‑11‑1992 passed by the learned Section 30 Magistrate, Sialkot, whereby the appellant was convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer R.I. for three years, ten stripes and fine of Rs.1,000 in default to suffer S.I for four months more.

2. It is case of the prosecution that on 2‑11‑1991 at about 2‑00 p.m. the appellant was apprehended and from his possession 500 grams of heroin was recovered. Sample was taken therefrom and report of expert in respect of the same is in positive. F.I.R. No. 384 of 1991 was registered at Police Station Hajipura on the same day. After usual investigation the appellant was challaned before the Court to face trial for the offence. Before the learned trial Magistrate the appellant did not plead guilty to the charge and claimed trial. The prosecution, therefore, examined:‑‑ P.W.1 Muhammad Arif, ASI, recovery witness. Supported the case. P.W.2 Khadim Hussain, Head Constable, a formal witness. P.W.3 Zakaullah, Constable, a formal witness. P.W.4 Rashid Mehmood, star witness/investigation officer.

3. In his statement recorded under section 342, Cr.P.C. the appellant denied the allegation and canvassed innocence and examined D.W.1 Muhammad Anwar and D.W.2 Allah Ditta in defence. The learned Magistrate, however, found him guilty for the offence, convicted and sentenced him for the same as mentioned hereinabove. Hence this appeal.

4. Mr. Shamim Iqbal Butt, Advocate, appeared for the appellant and Mr. Muhammad Akhtar, Additional Advocate‑General with Mr. Masood Sadiq Mirza, Advocate, appeared for the State.

5. The learned counsel for the appellant at the very outset contended that in spite of people being present at the spot, no one from them was examined, hence no reliance can be placed on the evidence of police officials whose evidence gets no independent support from any quarter. Besides, there are material contradictions in deposition of P.W.1 Muhammad Arif and P.W.4 Rashid Mehmood regarding presence of people at the spot. Thus the conviction and sentence of the appellant be set aside. Reliance was placed on an authority reported in 1992 SCMR 1475.

6. The learned counsel representing the State vehemently resisted the contentions of the appellant and defended the judgment passed by the learned Magistrate.

7. It may be observed that in narcotic cases persons from public not only avoid but decline to act as witness, but unfortunately, if some one is associated he either declines to support the prosecution or gives damaging concession in cross‑examination in favour of the traffickers for one or the other reason. In such view of the fact the Courts have considered the evidence of person in uniform to be as good as that of any person from public; if it stands the test of cross‑examination and other tests. Reliance is placed on PLD 1991 FSC 1, and (sic).

8. The only contradiction pointed out in evidence of P.W. 1 Muhammad Arif and P.W. 4 Rashid Mehmood is that P.W. 1 Muhammad Arif has said that no body was present there but two purchasers were seen going whereas P.W. 4 Rashid Mehmood has said that some persons were there. If the two statements are kept in juxtaposition it would show that some people were there whether they were spectators or purchasers. However, it is not a contradiction which may affect the recovery of contraband material from the person of the appellant.

9. In the end abortive attempt was made to attack the weighing of the material. That objection is also of trial nature and would be of no help to the appellant.

10. I had the opportunity to go through the evidence produced by the prosecution and the defence. P.W. 1 Muhammad Arif and P.W. 4 Rashid Mehmood have fully implicated the appellant for having been found in 8 possession of the contraband material which has been certified to be heroin by the expert. The witnesses have no animosity against the appellant. They had no reason to falsely implicate him. Their evidence is confidence inspiring. On sound reasons the defence witnesses have been discarded. The observations made by the learned Magistrate in that respect are also relevant. The same is as under:‑‑ "I have gone through the record and evidence adduced on the file. I have also heard the arguments of the defence counsel as well as State prosecutor. There are some minor discrepancies in the deposition of P.Ws., but that is natural, because it is very difficult to give mathematical account of prosecution version, however, all the P.Ws. have deposed corroborative evidence on the point of time, place and mode of recovery. All the P.Ws. are police officials, but no animosity has been brought on file which can be considered and their evidence may be discarded. There is no infirmity, animus or mala fides attached to investigating officer so his evidence can be quite believable. It is, also noted that procuring of witnesses from public was not possible in the late hours of night so the prosecution evidence as such is confidence inspiring. Whereas defence witnesses are disbelievable because D.W.1 is father of the accused and D.W. 2 is next door neighbour. Both have got favorite attitude towards the accused. The report of chemical examination Ex. PD is positive. All the prosecution witnesses supported on oath the prosecution story in all details. Such omissions would not create any doubt about the credibility of witnesses."

11. Indeed, the learned Magistrate has evaluated the evidence of prosecution and defence on sound principles of administration of justice. I see no reason to take a different view than that taken by him. The appeal, therefore, fails, which is dismissed accordingly. The learned Magistrate has already taken a lenient view while awarding lesser sentence to the appellant. Thus there is no other mitigating circumstance which may call for reduction of sentence. N.H.Q./797/FSC???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.