2008 PLP 788 (MLD)

M. JAVED BUTTAR, J.

The appellant, Raham Dad, was tried by Judge Special Court, (Narcotics), Gujrat, in case F.I.R. No. 286, dated 17-6-2000, registered at Police Station Sadar Jalalpur Jattan, for the offence under section 9(c) of Control of Narcotic Substances Act, 1997, at the instance of complainant (P.W.5), Muhammad Azam, S.-I., CIA Staff, Lala Musa, for the recovery of 13 Kilograms of Charas, from the house of the appellant, on the appellant's pointation. The learned trial Court, vide its judgment, dated 15-12-2000, convicted the appellant under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to life imprisonment along with fine of Rs. One Million and in default whereof to further suffer three years' R.I. He was, however, extended the benefit of section 382-B, Cr.P.C. The appellant, through this appeal, has assailed the legality and correctness of his conviction and sentence.

2. The relevant facts are that, on 17-6-2000, during the investigation of case F.I.R. No. 285, dated 17-6-2000, registered at the same Police Station, being conducted by the complainant Muhammad Azam, S.-I. (P.W.5), the appellant/accused, in the presence of the members of the raiding party, disclosed that more Charas was being kept by him buried outside his house and that he can get it recovered by pointation. It is further narrated in the complaint (Exh. PA) that the accused accordingly, while in custody, led the police party to his house and from the outer side of The northern wall towards eastern side gate, the accused dug earth with his hands, upto two feet and brought out a nylon bag containing Charas weighing 13 kilograms, out of which 100 grams of Charas was separated as sample for chemical analysis and made into a sealed parcel. However, the remaining parcel of Charas (P1) was also prepared and both the parcels were taken into possession vide memo. Exh.PB. The complainant then drafted the complaint (Exh. PA) and sent the same to Police Station through Basharat Ali, Constable, for registration of the case. He prepared rough sketch (Exh.PC) of the place of recovery, recorded the statements of P.Ws. under section 161, Cr.P.C. and on returning to Police Station, he handed over the case property to the Moharrir, completed the investigation and got the accused challaned to the Court.

3. The formal charge was framed on 2-12-2000, which was pleaded not guilty and trial was claimed.

4. P.W.1., Muhammad Tufail, Duty Officer, received the complaint (Exh.PA), on 17-6-2000, on the basis of which, he drafted formal F.I.R. (Exh.PA/1).

5. P.W.2, Mazhar Iqbal Moharrir, received two sealed parcels said to contain Charas on 17-6-2000, which were kept by him in safe custody in the Malkhana and on 23-6-2000, he handed over the sample parcel to Muhammad Ashraf, Constable, for its onward transmission to the office of Chemical Examiner.

6. P.W.3., Muhammad Ashraf, Constable, received the sealed parcel of Charas, on 23-6-2000 and deposited the same in the office of the Chemical Examiner, Lahore, on the same day.

7. P.W.4, Amjad Iqbal, Head Constable, was member of the raiding party, which investigated case F.I.R. No. 285, dated 17-6-2000 and in his presence, the accused allegedly disclosed that he could lead to the recovery of Charas buried by him near the gate of his house, situated in village Daulat Nagar. He fully supported the complaint. He is also an attesting witness of recovery memo. Exh.PB. In the cross-examination, he stated that Charas was in the shape of Chittars. He could not tell the number of Chittars. He also stated that Chittars were weighed together and that the sample Charas of 100 grams was separated from one Chittar only.

8. P.W.5, Muhammad Azam, S.-I. (complainant) fully supported his complaint (Exh.PA). In the cross-examination, he stated that he separated 100 grams Charas from different Chittars. However, he could not tell the number of the Chittars from which he separated Charas for sample. He further admitted in the cross-examination that he had not separated Charas from all the Chittars.

9. The prosecution tendered in evidence report of Chemical Examiner (Exh.PD), gave up Nawazish Ali, Constable, as unnecessary and closed its case.

10. The appellant, in his statement under section 342, Cr.P.C., answered question No.4, that why this case against him and why the P.Ws. had deposed against him, as follows:-- "The false case has been registered against me. The factual position is that I was involved in my wife's murder case. I faced trial in that case and was convicted. After undergoing the sentence, I was released from Jail a few months prior to the registration of this case. I started living at Rawalpindi with my brother, who is running a Dairy Farm there. I also used to visit Village Daulat Nagar to see my brother, living there. When my in-laws came to know about my release from Jail and about arrival in village Daulat Nagar, they due to enmity and grudge of the murder with me, in connivance with the police, got me implicated in this false case. Earlier, I was never involved in such like cases. Nothing was recovered from me. The P.Ws. being subordinate/police officials have deposed against me falsely only to please their superiors."

11. The appellant did not appear as his own witness under section 340(2), Cr.P.C. However, he produced three witnesses in defence.

12. D.W.1, Ghulam Ali, resident of Gulzar-e-Quaid Colony, Rawalpindi, staled that the accused lived along with his brother Fazal Dad, near his residence and on 15-6-2000, in the evening, brother-in-law of the accused gave him a message on telephone to inform the accused about the death of son of his sister in village Daulat Nagar, which message was passed on to the accused. In the cross-examination, this witness admitted that he did not appear before the police in defence of the accused and explained that he was not called by the police. He further stated that he did not know whether, on 17-6-2000, the accused was apprehended by the police in village Daulat Nagar or that Charas was recovered from him.

13. D.W.2, Muhammad Arshad, resident of village Aadowal, stated that the accused Raham Dad was his brother-in-law (wife's brother) and that he lived in Gulzar-e-Quaid Colony, Rawalpindi, he was running business of Dairy Farm along with his brother Fazal Dad. He further stated that on 15-6-2000, his minor son died and he conveyed this information on telephone to the accused through his neighbour Ghulam Ali, on the receipt of which, on the next day, accused came to the village Aadowal and attended the funeral of his son in his village and then proceeded to village Daulat Nagar to see his brother Karim Dad. In the cross-examination, he admitted that he did not appear before the police for making statement in defence of the accused and explained that he was asked by the police.

14. D.W.3., Muhammad Azam, resident of Daulat Nagar, stated that the accused and his brother Fazal Dad were residents of Rawalpindi and were doing the business of Dairy Farm. He further stated that on 16-6-2000, the accused came to village Daulat Nagar for attending the funeral of son of his sister in village Aadowal and the accused was falsely involved in the present case by the Police under the influence of the relatives of the accused's deceased wife, for whose murder the accused had previously been convicted. He admitted in the cross-examination that he did not appear before the police in defence of the accused and that the complainant Muhammad Azam, S.-I. and other P.Ws. had no personal enmity with the accused.

15. We have heard the learned counsel for the appellant, the State and have also seen the record with their help.

16. It is submitted by the learned counsel for the appellant that it has been admitted by both the recovery witnesses i.e. P.W.4, Amjad Iqbal and P.W.5, Muhammad Azam, S.-I., (complainant), that Charas was in the shape of different Chittars and P.W.4 has stated that the sample Charas of 100 grams was separated from one Chittar only and P.W.5 has admitted that he had not separated Charas for sample from all the Chittars and in these circumstances, Charas will be deemed to have been recovered only from one Chittar and even if it is assumed that all Chittars weighed 1 kilogram each, the offence committed by the appellant would fall under section 9(b) of Control of Narcotic Substances Act, 1997, and not under section 9(c) of the Control of Narcotic Substances Act, 1997. Reliance, in this regard, has been placed on Farid Gul v. The State (2002 PCr.LJ 1810 (Peshawar), in which out of 45 packs, each containing one Kg. of Charas, admittedly sample of 4 grains was taken from only one packet. It was held that culpability of the accused could, therefore, only be regarding one packet from which the sample was taken. Consequently, the conviction of the accused, under section 9(c) of the Control of Narcotic Substances Act, 1997, was altered to section 9(b) of the said Act. The contentions have been opposed.

17. The appellant was apprehended on the spot along with the substance weighing 13 kilograms in the shape of different Chittars/Slabs, which looked like Charas. The recovery witnesses have fully supported the prosecution case. No doubt, they are police officials but they have no enmity with the accused to suggest false implication. The police officials are as good witnesses as others. We, therefore, hold that the prosecution case to the extent of recovery of 13 kilograms of substance, which looked like Charas, has been fully proved. We, however, find that the trial Court acted illegally in assuming that the whole of the substance, recovered at the instance of the appellant, was Charas. P.W.4 admitted in the cross-examination that the sample Charas of 100 grams was separated only from one Chittar and P.W.5 admitted that he had not separated sample Charas from all the Chittars. His deposition to the extent that he separated 100 grams of Charas for sample from different Chittars, the number of which could not be given by him, is in contradiction with the deposition' of the P.W.4, to the extent of number of Chittars, from which Charas was separated as a sample. We resolve this contradiction in favour of the accused and hold that, as stated by P.W.4, sample Charas of 100 grams was separated only from one Chittar and even if all the Chittars recovered, on the pointation of the appellant, are taken to weigh 1 kilogram each, if not less, because the number of recovered Chittars is not known, the offence committed by the appellant would fall under section 9(b) of Control of Narcotic Substances Act, 1997. We have held as above because there is no evidence that rest of the substance recovered at the pointation of the appellant, except the sample parcel, also contained Charas. We are fortified in arriving at this conclusion by the view taken in Farid Gul v. The State (supra), which has been followed by this Court in Criminal Appeal No. 117-J/2001, decided on 13-1-2004.

18. For the reasons stated above, the appeal is partly allowed. The conviction of the appellant recorded under section 9(c) of Control of Narcotic Substances Act, 1997, is altered to that under section 9(b) of the Control of Narcotic Substances Act, 1997. Resultantly, the sentence of imprisonment of life, awarded to the appellant by the trial Court, is reduced to seven years' R.I. The sentence of fine or in default of payment of fine, to further undergo three years' R.I., as awarded by the trial Court, is kept intact. He would remain entitled to the benefit of section 382-B, Cr.P.C., as given to him by the trial Court. N.H.Q./R-62/L Order accordingly.