1999 P Cr (PLP)

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)

Art. 4

Accused was sentenced for recovery of one Kg. "Charas" by Trial Court

All prosecution witnesses were unanimous on point of recovery of "Charas"

Sample from recovered "Charas" was sent to the Chemical Examiner on the same day

No malice on the part of police could be spelt out from the evidence on record or suspicion that huge quantity of "Charas" was falsely planted against accused

Accused, held, was rightly convicted by Trial Court. Bashir Ahmad for Appellant. Malik Manzoor Hussain, A.A.-G. for the State. Date of hearing: 23rd November, 1998 The local police on 14-9-1996 at 11-45 a.m. apprehended Muhammad Aslam appellant while present in his shop situated at "Pukhral Chowk", Khalabat Township and on his personal search recovered one kilogram "Charas". The accused was arrested and a case registered at Police Station Khalabat Township under Article 3/4 of the Prohibition Order, 1979 on the report of I.H.C. Abdur Rashid. He on the completion of investigation faced trial before Additional Sessions Judge, Haripur and convicted under Article 4 of the Order ibid on the conclusion of trial to six months' R.I. with a fine of Rs.1,000 or 15 days' S.I. in default. Hence this appeal by the convict-accused.

2. I have heard Mr. Bashir Ahirlad, Advocate on behalf of the appellant and the Assistant Advocate-General. The record shows that Abdur Rashid, I.H.C, alongwith F.Cs. Aurangzeb No.253 and Sher Afghan No.20 were on "Gasht" in the Ilaqa on 14-9-1996 and received a secret information that the appellant was selling "Charas" in his grocery shop situated in "Pukhral Chowk". On this the police party went to the shop and on his personal search recovered one Kg. Charas" from the trouser fold of the accused. He was arrested. Four grains front the seized "Charas" was separated, sealed in a parcel and sent to the laboratory for examination. The accused on the completion of investigation was tried before Additional Sessions Judge, Haripur who on the conclusion of trial convicted and sentenced the appellant is stated before. The learned counsel vehemently argued that thre being contradictions in the statements of the police officials, the very recovery of substance from the person of the appellant has become doubtful by stating, that the witnesses are at variance about colour of the plastic bag in which the "Charas" was wrapped or in which type of scale it was weighed. The recovery of the narcotic was made on 14-9-1996 whereas statements of the witnessed were recorded in Court on 10-10-1996 after the lapse of a period of more than one year and as such witnesses can be at variance on minor particulars in evidence for whish the prosecution case cannot be totally rolled down. Anyhow, all the witness are unanimous on material particulars relating to the recovery of one Kg. "Charas" from the trouser fold of the appellant in his shop at the relevant time:'

3. The learned counsel next argued that "Charas" was not produced in evidence before the Court. The argument does not succeed for the simple reason that the narcotic was not only produced in evidence of the case before the Court during trial but exhibited in presence of the learned counsel of the appellant. He stated further that no public witness was procured in support of search and recovery of the "Charas" which was made in violation of the mandatory provisions of section 103, Cr.P C. and that the police did not also take a search warrant from a Magistrate under Article 22 of the Prohibition Order. No malice on the part of the police is spelt out from the evidence on record or that huge quantity of "Charas" was falsely planted against the appellant. The police official is as good witness as any person from the public. Strict compliance of the requirement of section 103, Cr.P.C. could not be made in the circumstances of the case as the accused was searched in personion secret information and the police had also no time to obtain a search wart-ant. The learned A.A.-G. in support thereof rightly pressed into service the cases Muhammad Khan v. The State 1994 SCMR 1543 and Mushtaq Ahmad v. The State 1995 SCMR

510. We rather see from the writing of I.H.C. Abdur Rashid on the recovery memo that no witness from public was ready r evidence. We also see from the record that four grams "Charas" was sent to the chemical examiner on the same day, i.e. 14-9-1996 which was received in the laboratory on 16-9-1996. The last argument made by the learned counsel that one Kg. "Charas" cannot be concealed in a trouser fold is not acceptable for this simple reason that all the prosecution witnesses are unanimous on a point of fact that it was recovered from the trouser fold of the appellant at the relevant time in his shop.

4. In the circumstances I see that the prosecution having been able to prove their case against the appellant beyond any reasonable doubt he was rightly convicted under Article 4 of the Prohibition Order, 1979 and sentenced as aforesaid. The appeal is dismissed and the appellant being on bail is taken into custody for undergoing the sentence. ,Q.M.H./M.A.K./236/P Appeal dismissed.