2002 P Cr (PLP)

IJAZ‑UL‑HASSAN KHAN, J.‑‑‑ This appeal has been directed against the judgment, dated 9‑3‑2001 passed by learned Additional Sessions Judge, Peshawar in case F.I.R. No.33, dated 29‑1‑2000 by which Jana Gul appellant has been convicted under section 9 of the Control of Narcotic Substances Act, 1997 and sentenced to undergo R.I. for three years and fine of Rs.1,000 or in default thereof to suffer further S.I. for one month. He was, however, awarded benefit of section 382‑B, Cr.P.C. in the computation of his sentence.

2. The brief facts of the case are that on 29‑1‑2000 at about 19‑45 (tours complainant Rahim Dil, S.‑I./S.H.O., Railway Police, Peshawar Cantt. alongwith Aziz Muhammad and Zarif Khan F.Cs. was busy in checking at the Railway Station, when he found a person roaming at the platform in suspicious condition. On inquiry he disclosed his name Jana Gul son of Khial Shah resident of Ani Zakha Khel Landi Kotai. The man was carrying a tin of Ghee in his hand. Upon search 1900 grams Charas was recovered from the tin, out of which ten grams was forwarded for Chemical examination. A case under section 9 of the Control of Narcotic Substances Act, 1997 was accordingly registered at 20‑45 hours and appellant Jana Gul was formally arrested.

3. The prosecution at trial examined two witnesses namely S.‑I. Reham Dit Khan (P,W.1) and F,C. Zarif Khan (P.W.2) and abandoned F.C. Abdul Aziz as unnecessary.

4. The appellant in his statement under section 342, Cr.P.C. denied the prosecution case and claimed to be innocent. In reply to a question as to why the prosecution witnesses had deposed against him, he stated:‑‑ I was standing on the door outside the station and was waiting for my cousin namely Jamil who was due from Dubai. In the meanwhile the Investigating Officer came alongwith constables. He apprehended me, took out the sum of Rs.1,500 from my pocket and a wrist watch. On my demand of its return the Investigating Officer got, annoyed. He insulted me, took me to the police station and involved me in the present case and did not return the said amount to me."

5. He also did not examine himself on oath as required under section 340(2), Cr.P.C. and also did not examine any person in defence.

6. Stand of Mr. Farooq Shah, learned counsel for the appellant is that though the recovery of Charas is alleged to have been made at a thickly populated place i.e. platform of Railway Station Peshawar Cantt. in presence of the passengers but no independent and disinterested witness has been associated with the recovery and thus legal requirements of section 103, Cr.P.C. have not been complied with. The learned counsel also reiterated that S.‑I. Raham Dil P.W..has combined in himself the duties of complainant, Investigating Officer and witness ,.which has materially prejudiced the interest of the appellant. The learned counsel further contended that ocular account of the incident furnished by P.Ws. Rahim Dil Khan, S.‑I. and Zarif Khan, F.C., is full of contradictions and discrepancies and the learned trial Judge had no justifiable reason to place implicit reliance on their testimony in the absence of corroborative evidence. The learned counsel further contended that prosecution has omitted to bring on record the evidence to demonstrate as to who incorporated the F.I.R. in this case on receipt of Murasila drafted by P.W.1 and who took the sample to the Forensic Science Laboratory Lahore for the purpose of examination. Concluding the arguments the learned counsel reiterated that person charged with a criminal offence is to be saddled with the liability only if prosecution is found to have established its case against him beyond all reasonable doubt. To argument the contention, the learned counsel placed reliance on the following rulings:‑‑ (a) Noorul Haq v. The State 1992 SCMR 1451, (b) Tariq Parvez v. The State PLD 1995 SC 1345, (c) Imran Saeed v. The State 2001 PCr.LJ 1365, (d) Ijaz Khan and others v. The State and another 2001 YLR 2039, and (e) Khalil Ahmad v. The State PLJ 2001 Cr.C. Lahore 1312.

7. Mr. Hamid Farooq Durrani, learned State Counsel, on the other hand, supported the impugned judgment and contended with justification that sufficient material was brought on record to connect the appellant with the guilt; that presence of the appellant at the platform stands admitted in his statement recorded under section 342, Cr.P.C. and that no suggestion is made to P. Ws. to show that they had any personal grudge against the appellant. He relied on the following judgments:‑‑ (a) Munawar Hussain and 2 others v. The State 1993 SCMR 785, and (b) Muhammad Farooq Afridi v. The State 2002 PCr.LJ 196.

13. Again the mere fact that prosecution has omitted to bring on record as to who had been entrusted with the duty to take sample to Lahore for opinion and report or who incorporated the Murasila into report, by itself, is not fatal to the prosecution case. It is merely an irregularity and cannot be treated as an illegality vitiating the trial or making the prosecution case doubtful. It has also been contended half‑heartedly that one of the marginal witnesses to recovery memo. (Exh.P.C.) namely Aziz Muhammad, F.C. has been abandoned by the prosecution without valid reasons which tends to suggest that the recovery was not affected in the manner alleged by the prosecution. This submission too is without substance. Law insists on quality and not on quantity of evidence.

14. The case‑law cited on behalf of the appellant is distinguishable and has no bearing on the facts of the present case. It is of no avail to the appellant.

15. In the wake of above discussion, we find that prosecution has succeeded to prove its case against the appellant beyond any F shadow of doubt. There is no merit in this appeal which is accordingly dismissed.

16. The appellant was admitted to bail by this Court vide order, dated 29‑8‑2001. The appellant did not appear in Court and non‑bailable warrants of arrest were issued against him. The appellant has been arrested and produced in Court in handcuffs. The appellant is directed to be sent to jail to serve out the un-expired portion of his sentence. H.B.T./528/P Appeal dismissed.