2008 P Cr (PLP)

ARSHAD NOOR KHAN, J.

By this jail appeal, appellant Israr Ahmed has challenged the propriety, legality and validity of conviction and sentence awarded to him under section 9(c) of the Control of Narcotic Substances, Act, 1997 (hereinafter shall be referred as the Act 1997) in Special Case No.6 of 2005 State v. Israr Ahmed by the learned Special Judge, Control of Narcotic Substances Kamber, whereby he has been convicted and sentenced to suffer seven years' R.I. and fine of Rs.100,000 and, in case of default in payment of fine, he shall suffer further R.I. for six months, in Crime No.1 of 2004 of Excise Police Station Circle, Shandadkot.

2. The facts, as stated in the F.I.R., in brief are, that on 19-1-2004 Inspector Allah Bux of Excise Department along with A.E.T. Anwar Ali Seehar and subordinate staff E.C. Javed Ali, E.C. Muhammad Yakoob and E.C. Hakim Ali, 'left police station for patrolling, when they reached near stadium on bye-pass road, Shandadkot they saw a person coming from eastern side, carrying green coloured bag hanging on his shoulder, who was suspected and was therefore, apprehended and said bag was secured from him, after apprising him about the identity of the complainant, and on interrogation he disclosed his name as Israr Ahmed son of Najamuddin Samejo resident of Saryab Road, Quetta Balochistan. His personal search was also conducted and cash of Rs.100 was secured from the pocket of his shirt. The bag secured from him was also searched and he secured 14 plastic bundles of different colours which contained Charas. Each bundle was weighed to be one Kilogram and total weight of the Charas was 14 Kilograms. It is further stated in the F.I.R., that out of 14 bundles of the Charas, two bundles of the Charas weighing two kilogram were sealed separately in dusky envelope and remaining 12 bundles of Charas being 12 kilogram was sealed in the same bag. The accused was therefore, arrested and such Mashirnama of arrest and recovery was prepared at the spot and they returned to their police station where F.I.R., as stated above, was registered. After registration of the F.I.R., compliance of section 265-C, Cr.P.C. was made vide receipt Exh.1 and charge was framed on 27-7-2004 vide Exh.2. to which he pleaded not guilty and claimed trial vide plea Exh.3. After framing the charge prosecution examined P.W. 1 E.C. Muhammad Ayoob vide Exh.7 who produced Mashirnama of arrest of the accused and recovery of the Charas vide Exh.7-A, P.W.2 Excise Inspector Allah Bakhsh vide Exh.9 who produced copy of F.I.R., vide Exh.9-A, Chemical Examiner's report vide Exh.9-B, photocopy of Roznamcha entry vide Exh.9-C. The prosecution given up P.W. Javed Ali EC vide statement Exh.8 and closed its side vide statement Exh.10.

3. The statement of the appellant was recorded under section 342, Cr.P.C. as Exh.11 wherein he denied 'his arrest on 19-1-2004 and recovery of 14 kilogram Charas from the bag secured from him and also denied the seal of two kilogram Charas and 12 kilogram Charas separately. He further stated that all the P.Ws. are Police Official, who are interested witnesses and he is innocent and has not committed any offence. He has not examined himself on oath nor has led evidence of his witnesses in his defence.

4. The learned Special Judge, Control of Narcotics Substance, Shandadkot at Kamber vide his judgment dated 24-9-2007 has convicted and sentenced the appellant as stated above, hence the present appeal.

5. We have heard the appellant in person and Mr. Nisar Ahmed Abro, learned counsel for the State.

6. The appellant vehemently contended hat he is innocent and has been implicated falsely by the police because of enmity with him and the Police Officials being interested witnesses have implicated him for certain ulterior motives. According to him no narcotic substance was secured from him and he has been implicated falsely in the present case as such he may be acquitted from the charge.

7. Mr. Nisar Ahmed Abro, learned counsel for the State vehemently opposed the submissions advanced by the appellant and has contended that heavy quantity of Charas being 14 kilogram has been secured from him and such heavy quantity of Charas cannot be foisted on the appellant and recovery of Charas has been proved on the basis of evidence available on record and no independent evidence has been led by the appellant to refute the recovery of such huge quantity of Charas from him. According to him no mala fides has been proved against the witnesses who are police officials and the evidence of police officials could not be thrown out merely on the allegation that they are police officials and their evidence is as good as the evidence of any other independent witness could be. According to him the Chemical Examiner's Report is positive which has also strengthen the case of the prosecution as such, no illegality or misreading of the evidence has been pointed out by the appellant and his appeal is liable to be dismissed.

8. We have considered the arguments advanced by the appellant and the learned counsel for the State and have carefully gone through the entire evidence available on record.

9. The facts of the case of prosecution as discussed above, are that on 19-1-2004 when the complainant along with his subordinate staff was on patrolling duty and at about 4-15 p.m. when they reached at Stadium Road Shandadkot they saw a person coming from eastern side in suspected condition and a bag was hanging on his shoulder as such, he was apprehended and on interrogation he disclosed his name as Israr Ahmed and on search of his bag 14 bundles of Charas wrapped in different colour polythene bags were secured and two bundles of the Charas were sealed separately for chemical examination and remaining quantity of the Charas was sealed in the same bag. The contents of the F.I.R., has been fully supported and corroborated by P.W. Muhammad Ayoob E.C. who is the Mashir of recovery of the Charas. His testimony shows that he along with complainant and other Police Officials reached at Stadium Road when they found a person coming from eastern side having a bag hanging on his shoulder was apprehended and on interrogation he disclosed his name as Israr Ahmed son of Najamuddin and on search of the said bag secured 14 kilogram Charas wrapped in indifferent coloured bags of polythene and also on personal search of the appellant, cash of Rs.100 was secured. The said testimony has not received any material dent in lengthy cross-examination conducted by the counsel for the appellant. In his cross-examination nowhere any specific instance of enmity or mala fides has been suggested by the appellant so as to reflect adversely on his testimony. He has also denied the suggestion that Charas has been foisted on the appellant. The testimony of P.W.1 Muhammad Yaqoob regarding arrest of the appellant and recovery of Charas remained unshattered nor has received any material dent so as to extend its benefit to the accused.

10. P.W.2 Allah Bux Excise Inspector, who is the complainant has fully supported the contents of the F.I.R. and has stated that on the fateful day of incident at about 3-30 p.m. he along with his subordinate staff had gone for patrolling and when they reached near Stadium Road they found a person coming from the eastern side to whom they apprehended and a bag which was hanging on his shoulder was secured. On interrogation, the said person disclosed his name as Israr Ahmed and on his personal search, cash of Rs.100 was secured and on search of the said bag, 14 bundles of Charas wrapped in different coloured bags were secured and he separated two bundles and sealed the same for chemical examination and remaining quantity of the Charas was sealed in the same bag which was secured from him. In his cross-examination the said ocular testimony has not been disputed, denied or challenged. He has also stated in his cross-examination that on the next day of recovery of Charas, it was sent to Chemical Analyzer through E.C. Muhammad Ayoob. He has further stated in his cross-examination that at the time of search of the appellant no person from the locality was asked to act as Mashir. He further denied the suggestion that Charas has been foisted on the appellant.

11. The testimony of P.W. Allah Bux, Excise Inspector, who is the complainant and eye-witness fully supports the version of P.W. EC Muhammad Ayoob and the testimony of both these witnesses are fully in consonance with each other without any material dent regarding recovery of such huge quantity of Charas from the appellant.

12. The contention of the appellant that the Police Officials have implicated him being the interested witnesses as such their testimony is not worth of credence. The said contention was also advanced on behalf of the appellant before the learned lower Court and the learned lower Court turned down the said contention raised on behalf of the appellant. It is settled principle of law that evidence of the Police Officials may be treated as good as evidence of other independent witnesses could be, who possess no mala fides against the accused however, subject to their cross-examination and if from their cross-examination, their testimony did not receive any material dent, the same may be considered against the accused.

13. In the case of Naseer Ahmed v. State reported in 2004 SCMR 1361 the Honourable Supreme Court while dealing with the same contention was pleased to repeal the said contention, for the reason that the police officials in the case had fully stood the test of cross-examination and the defence was not able to inflict any dent in their testimony. It is further held in the same case that this Court (Supreme Court) time and again has held that the police officials are as good witnesses as others and their evidence on this score alone should not be discarded. Now-a-days drug trafficking has created dangerous problems for the society and the country at large. This menace should be curbed so that people in society would get relief. The dictum laid down by the Supreme Court in the case of Naseer Ahmed (supra) is fully attracted to the circumstances of the present case.

14. The recovery of 14 kilogram Charas from the appellant has not received any material dent nor has been disproved in the lengthy cross-examination conducted on the prosecution witnesses by the prosecution. The learned trial Court still has given the benefit to the appellant regarding recovery of 14 kilogram Charas from him and has simply relied upon recovery of two kilogram Charas sent to the Chemical Examiner for report. The learned trial Court was pleased to observe that no samples were taken from remaining 12 bundles nor any explanation has been given as to why the samples from those 12 bundles were not taken, therefore, the recovery of 12 kilogram Charas was not believed because of the reason that only two kilogram Charas was sent to the Chemical Analyzer who after analysis of the same opined it in positive as such recovery of two kilogram Charas was believed by the learned trial Court and the appellant has been convicted for the recovery of two kilograms Charas. The said finding of the learned trial Court has not been assailed by the learned counsel for the respondent, nor has been challenged by way of separate appeal by the State.

15. The Charas secured from the appellant was sent to the Chemical Analyser and all the said quantity of two kilogram Charas sent to the Chemical Analyser was opined in affirmative to be the Charas vide report of the Chemical Analyser Exh.9-B as such there is no doubt that the said Charas sent to the Chemical Analyzer was in fact the Charas.

16. In his statement under section 342, Cr.P.C. the appellant has not raised any defence and has simply denied the recovery of the Charas from him which, in fact, has been proved from the satisfactory evidence available on record. The offence alleged against the appellant for the recovery of Charas has been satisfactorily proved. The appellant has therefore, not made out any case for interference in the judgment passed by the learned lower Court. The appeal has therefore, no substance and is hereby dismissed. N.H.Q./I-7/K Appeal dismissed.