2010 PLP 1453 (MLD)

MIAN FASIH-UL-MULK, J.

This appeal has been directed against the judgment of learned Additional Sessions Judge-I, Mansehra, dated 26-9-2009, whereby appellant Fahim Shah was convicted under section 9(C) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life with a fine of Rs.4,00,000 and in default undergo further 2 years' S.I. at the expiration of main imprisonment, which will be four years' R.I. and the remaining will be simple. The benefit admissible under section 382-B, Cr.P.C. was, however, extended to him.

2. The facts of the case are that on 26-6-2008 complainant Muhammad Afzal S.-I., upon spy information laid picket near Lakson Tobacco Company on Baffa

Mansehra road in the company of other police officials. A person holding one wooden crate was intercepted on a tip off and on search it led to the recovery of 10 plastic packets of Charas out of which 5 packets each weighing 1200 grams, 2 packets each of 1190 grams, two packets each of 1180 grams and 1 packet of 1150 grams, total 11890 grams out of the crate. 5/5 grams from each packet was separated and kept for chemical analysis whereas remaining quantity of 11840 grams was sealed into a parcel along with the crate and a case vide F.I.R. No.213 dated 26-6-2008 was registered against him under section 9(C) C. N.S. A.

3. At the trial, the prosecution in order to prove its case against the appellant examined Head Constable Abdul Qayyum P.W. Muhammad Yasir No.911 of P.S Baffa (P.W.2), Muhammad Afzal S.-I. the then S.H.O. (P.W.3), Shabbir Ahmad A.S.-I. (P.W.4.). The appellant in his statement recorded under section 342 Cr.P.C. denied the prosecution allegations and claimed to have been falsely charged on account of a concocted case at the instance of Muhammad Afzal S.H.O. with the connivance of Aslam Khan, a business partner having some business dispute with him. In reply to a question as to "what is your statement and why are you charged he stated that:-- "I am innocent and falsely charged as an escape goat. Actual facts are that on the day of occurrence some other police official in plain clothes deboarded from a passenger vehicle and arrested the real culprit whatsoever he was arrested with the said contraband but he was released later on after settlement with him. I am dealing with the business of timber and one Aslam Khan of Baffa is my partner. I have been falsely implicated in the instant case by said Aslam Khan with the connivance of Afzal Khan, S.H.O. (Operation), P.S. Baffa Mansehra because I have some business dispute and outstanding against the said Aslam Khan. Moreover, not calling and handing over investigation to S.-I./OII of the said P.S. by Afzal Khan, S.H.O. clearly confirms that he concocted the instant case against me with the connivance of Aslam Khan of Baffa".

4. On assessment of evidence, learned trial Court having found the appellant guilty of the offence convicted and sentenced him as mentioned above.

5. Mr. Sohail Akhtar Advocate in support of the appeal contended that the prosecution failed to bring home the charge against the appellant and the evidence produced before the trial Court did not justify the conviction of the appellant. He further stated that there were damaging discrepancies between the statements of prosecution witnesses, which, in the ordinary circumstances, should have resulted in acquittal of the appellant. It was maintained that appellant has been falsely charged at the behest of one Aslam Khan of Baffa, with whom he had business rivalry and learned trial Court has not appreciated the prosecution evidence in its true perspective and arrived at a wrong conclusion. He concluded that prosecution has failed to prove its case against the appellant beyond shadow of reasonable doubt and instead of extending benefit of doubt to him, the case was stretched in favour of prosecution.

6. Meeting the arguments addressed on behalf of the appellant, Ms. Raheela Mughal Advocate maintained that prosecution has brought sufficient material on record to implicate the appellant with the commission of crime and in the absence of any ill-will or animosity on the part of police, such huge quantity of charas cannot be expected to be planted on the appellant.

7. The appellant in his statement under section 342, Cr. P. C. has taken the plea that he has got timber dispute with one Aslam and on account of said rivalry he has been involved by him in this case with the connivance of local police but he has failed to establish such plea by leading any independent/cogent/reliable evidence. Further, there is no allegation or proof that police has, any motive or ill-will to falsely involve the appellant in such a heinous offence. The appellant has made no endeavour to rebut the prosecution case by discharging his burden under section 29 of C.N.S.A. The mere denial of charge and pleading innocence without substantiating his plea through cogent evidence is not sufficient to secure acquittal.

8. We are not persuaded to agree with the learned counsel for appellant that there are major material contradictions in the statements of P.Ws., which could be considered fatal to the prosecution case. It would be seen that the appellant has not denied his arrest on the day of incident. According to the learned counsel for appellant P.W.3 has mentioned in his statement that he reached to the spot from police station at about 12-10 p.m. whereas the marginal witness to the recovery memo P.W.4 in his cross-examination stated that the occurrence took place at about 10/11 a.m. Except this discrepancy, P.Ws. have fully corroborated each other on material aspect such as recovery and arrest of appellant on spot.

9. Learned counsel also referred to the delay of about three days in sending the samples to Forensic Science Laboratory. It is evident from the record that recovery was made on 26-6-2008 and the samples were received in FSL for chemical examination on 30-6-2008. The P.Ws were subjected to very lengthy cross- examination but no questions were asked as to whether the case property produced in court was tampered with or the samples thereof were not sent to the Chemical Examiner for testing purposes. Consequently, we are of the view that mere delay in sending the samples is insignificant in the facts and circumstances of the case. If any authority is needed on the point, reference can be made to Muhammad Ali v. The State (2002 PCr.LJ 1976) and Gharibullah v. the State (2002 YLR 3822).

10. Learned counsel for appellant has also made an attempt to convince us that the report of Forensic Science Laboratory is positive and the contraband has been opined as Charas but the prosecution has failed to specify as to whether the same was in crude or purified form. We find no force in the contention for the reason that neither such question was put to any of prosecution witnesses nor the form of charas whether crude or purified would take out the same out of the ambit of definition of charas.

11. After concluding the arguments, the learned counsel for appellate in alternate prayed for reduction of sentence. We are unable to accede to such a request keeping in view the quantity of recovered charas which is more than 10 Kg. raw provides sentence of death or life imprisonment in case the quantity exceeds 10 Kg. This court has, therefore, no jurisdiction to award lesser sentence than the one mentioned in statute. The judgment is based on correct appreciation of law and proper evaluation of evidence, as such, the conviction of appellant is maintained. However, the finding regarding sentence recorded by the trial Court to the extent of "at the expiration of main imprisonment, which will be four years' R.I. and the remaining will be simple" being irrelevant are expunged.

12. Resultantly, this appeal being bereft of merits is hereby dismissed. H.B.T./224/P Appeal dismissed.