2017 P Cr (PLP)

HAIDER ALI KHAN, J.

The appellant, Muhammad Noman, through the instant appeal has challenged his conviction and sentence recorded by the learned Judge Special Court (CNS) Peshawar vide judgment dated 27.02.2016, whereby he has been convicted under section 9(c), C.N.S.A. and sentenced to undergo for twelve years' rigorous imprisonment along with fine of Rs.2,00,000/- in default of payment of fine, he shall further suffer simple imprisonment for two years.

2. The material facts leading to filing of instant appeal are that the complainant Naeem Khan S.I, had received information that accused Numan will traffic narcotics on motorcycle No.LYC924 from tribal area Khoi Bahara to his own area. The S.I Naeem Khan along with police nafri placed surveillance near Parwa bus stop. Meanwhile a motorcycle coming from Khoi Bahara side was intercepted. The accused having a white cloth packed bundle in his lap, which was opened and four packets of 1250 gram each, total 5 Killograms charas garda recovered. From body search of accused, Rs.600/- cash amount, one Q Mobile china, and photocopy of CNIC recovered. Motorcycle was also taken into possession vide recovery memo (Ex: PW 3/1). Murasila (Ex:PW 3/2) to this effect was drafted and sent to the Police Station ANF, D.I. Khan which was culminated into registration of FIR (Ex.PW1/1). Accused was arrested vide card of arrest (Ex:PW-3/3). The accused disclosed involvement of his father Muhammad Suleman in the business of narcotics, at which he was also arrested vide card of arrest (Ex:PW3/8). Section of law 14/15, C.N.S.A. was added vide document (Ex:PW 3/17). The IO prepared site plan (Ex:PW 3/5) and placed copy of F.S.L application (Ex.PW3/4) while F.S.L report is Ex:PW 3/15.

3. After completion of investigation challan (Ex:PW 3/16) was submitted against both accused and they were put on the trial. Both the accused were formally charge sheeted to which they did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against the accused produced and examined four witnesses. After completion of prosecution evidence, accused were examined under section 342, Cr.P.C., wherein they professed their innocence. They appeared as his own witness under section 340(2), Cr.P.C., but did not produce the defence evidence. The learned trial Court, after hearing the arguments of the parties convicted and sentenced the appellant, while acquitted the co-accused Muhammad Suleman, vide impugned judgment dated 27.02.2016. Hence this appeal.

4. Learned counsel for appellant argued that under the law the complainant was not authorized to investigate the case; that the place of occurrence was thickly populated area, but no private person was associated to the alleged occurrence; that as per story garda charas was recovered from appellant, which is not narcotics in its entirety; that the prosecution badly failed to prove case against the appellant, hence, he deserves to be acquitted by extending benefit of doubt.

5. In rebuttal learned AAG argued that huge quantity of charas was recovered from personal possession of the appellant, regarding which FSL report is in positive; that the appellant has previous history; that the complainant was having amply power to investigate the case; that prosecution has proved case against the appellant beyond any shadow of doubt, hence, appellant has rightly been convicted and sentenced.

6. We have heard arguments of learned counsel for the appellant, AAG for the State and perused the record with their valuable assistance.

7. The contention of learned counsel for the appellant that under sections 21 and 22 of the Control of Narcotic Substances Act, 1997, Assistant Sub-Inspector is not competent to register case under the said Act. In the instant case, accused was apprehended by Naeem Khan the then Sub-Inspector and on his report the instant case FIR was registered by Noroz Khan ASI. Hence, section 21 of C.N.S.A. has not been violated. Further the section 21 of the C.N.S.A. is directory and not mandatory. If any such violation is caused, it would be an irregularity which could be cured under section 537, Cr.P.C. and it would not cause any prejudice to the case of accused.

8. The marginal witnesses of recovery memo are unanimous about recovery of the same and other witnesses also supported the prosecution version, despite lengthy cross-examination nothing favourble to the appellant has been brought on record. The objection of learned counsel for appellant to the effect that both the official witnesses are police personnel and no independent private witness has been cited in the recovery memo is misconceived, because in such like cases, general public (Private persons) would not indulge themselves due to the fear of enmity and to avoid protracted trial proceedings. In such like cases, police officials are as good witnesses as other witnesses, unless any ill will, grudge or enmity with the accused is shown on their part. Learned counsel for appellant could not point out any ill will, grudge or enmity with the police officials, which may suggest his false implication. Prosecution has proved the recovery from personal possession of the appellant. Sample separated for chemical analysis carries positive report of FSL, which fully established that the recovered contraband were charas. The learned counsel for the appellant failed to point out any illegality or irregularity in the impugned finding of trial Court. The prosecution has succeeded to bring home guilt of the appellant, thus, in the circumstances, this appeal is hereby dismissed. However record depicted that the age of appellant was about 19 years at the time of commission of offence. Keeping in view very young age of the accused/appellant his sentence of 12 years seems to be harsh, which is hereby reduced to six years' RI. Benefit of section 382-B, Cr.P.C. extended in favour of appellant/convict. JK/287/P Sentence reduced.