2004 PLP 106 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner seeks grant of leave to appeal from judgment, dated 10-4-2002 passed by Lahore High Court, Lahore in Criminal Appeal No. 1140 of 1999.

2. Briefly stated the facts of the case are that an F.I.R. No. 598 of 1996, (Exh. P.A.) was registered against the petitioner on 28-12-1996 at Police .Station, Hajipura, Sialkot on the statement of P.W,4, Razzaq Ahmad, Sub-Inspector/S.H.O., Police Station, Uggoki under Article 3/4 of prohibition/Enforcement of Hadd Order, 1979. It was stated therein that one Badar Nazir, accused of another case, during the police investigation disclosed that the petitioner was dealing in narcotics. A police raid was conducted at the house of the petitioner who led to the recovery of two pistols of .30 bore and five kilograms of Charas from his house. Out of Charas, so recovered, 100 grams of Charas was separated for the purpose of chemical examination. The remaining Charas was deposited at Police Station, Hajipura. However, a sample of the recovered Charas was 'taken to Police Station, Uggoki. The report Exh. P.D. of the Chemical Examiner was positive. The petitioner was tried by the Sessions Judge/Special Judge, Sialkot, who after framing the charge, recording prosecution as also the defence evidence and the statement of the petitioner. under section 342, Cr.P.C. convicted, him by judgment, dated 18-10-1999 under section 9-C of the Control of Narcotic Substances Act, 1997 and sentenced him to 10 years R.I. with fine of Rs.1,00,000 and in, default of payment of fine to further undergo R.I. for one year. He was given benefit of section382-B, Cr.P.C.

3. The petitioner filed Criminal Appeal No. 1140 of 1999, which was dismissed by the Lahore High Court by impugned judgment, dated 10-4-2002. Hence this petition for leave to appeal.

4. The learned counsel for the petitioner argued that actual weight of Charas allegedly recovered at the instance of the petitioner was found as 4 Kgs and not 5 Kgs. The evidence of D.Ws.1 and 2 produced by the petitioner ought to have been believed by the trial Court as well as by the High Court. The raiding party did not associate any independent respectable person of the locality to witness the alleged recovery of narcotics which was a violation of the provisions of section 103, Cr.P.C. The learned counsel lastly submitted that the case property was not produced before the trial Court which vitiated the trial in view of the law laid down in case of Gulab v. The State 1992 SCMR 1502.

5. We have heard the learned counsel for the petitioner at length. The trial Court as well as the High Court believed the evidence of Sub Inspectors of Police P.W.4 Razzaq Ahmad and P.W.5 Muhammad Yousaf who conducted the raid and effected the recovery of the narcotics on the pointation of the petitioner. The positive report Exh. P.D. of the Chemical Examiner was also tendered in evidence by the public prosecutor. The trial Court duly considered the statements of D.W.1 Muhammad Amjad and D.W.2 Muhammad Sharif but did not find the same to be trustworthy. In the peculiar circumstances of the case nothing turns out that the raiding party did not associate the private persons at the time of conducting the raid and search of the house of the petitioner. No question was put by the defence to the Investigating Officer in this behalf. Needless to point out that the objection as to the non-production of the case property at the time of trial .was not taken either before the trial Court or before High Court at any stage of the proceedings. The impugned judgment was not shown to be suffering from any legal or factual infirmity so as to warrant any interference by this Court. This is not a fit case for grant of leave.

6. For the foregoing reasons we do not find any merit in this petition and the same is dismissed accordingly. N.H.Q./G-173/S Leave refused.