Asif Saeed Khan Khosa, J.--Munir Ahmad appellant was convicted for an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 1.10.2002 handed down by the learned Additional Sessions Judge, Sheikhupura and was sentenced to rigorous imprisonment for twelve years and a fine of Rs, 30,000/- or in default of payment thereof to undergo rigorous imprisonment for four months. The benefit under Section 382-B, Cr.P.C. was extended to the appellant. The appellant has challenged his conviction and sentence before this Court through this appeal. Through Criminal Revision No, 1122/2002 suo motu notice was issued to the appellant to show as to why, in case of dismissal of his appeal, his sentence may not be enhanced. We propose to decide this appeal and the connected revision petition together through the present consolidated judgment.
2. The prosecution's case against the appellant is that at about 12.10 p.m. on 16.8.2000 he was apprehended by a police party at Jatri Road near Gorayawala stop within the area of Police Station Manawala, District Sheikhupura and Charas weighing 3 kilograms-and a sum of Rs, 400/- being sale money had been recovered from his possession. FIR No, 268 was registered in that regard at Police Station Manawala, District Sheikhupura at 12.40 p.m. on the same day, i,e, 16.8.2000 for offences under Afticle 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and Section 9(c) of the Control of Narcotic Substances Act, 1997 at the instance of Muhammad Azam, SI. After submission of the challan the learned trial Court framed a Charge against the appellant for an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 to which the appellant pleaded not guilty and claimed a trial. During the trial the prosecution produced five witnesses in support of its case including Muhammad Iqbal, ASI (PW1) and Muhammad Azam, SI (PW5) who has deposed about the alleged recovery from the appellant and his apprehension by the police party.
In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted the prosecution's allegations against him and professed his innocence. He, however, opted not to may any statement on oath under Section 340(2), Cr.P.C. and also did not produce any witness in his defence. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above.
3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the statements made be Muhammad Iqbal, ASI (PW1) and Muhammad Azam, SI (PW5) before the learned trial Court regarding the alleged recovery from the appellant were contradictory to each other on various aspects of this case; the prosecution's case was full of improbabilities and infirmities; although admittedly many independent persons were available at the time of the alleged recovery but none of them had been associated with the same and, thus, the provisions of Section 103, Cr.P.C. had clearly been violated in this case; and, therefore, the prosecution had failed to prove its case against the appellant beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, thus, the conviction and sentence of the appellant recorded by the learned trial Court do not warrant any interference by this Court. The learned counsel for the State has further maintained that in the circumstances of this case the sentence passed against the appellant by the learned trial Court is quite sufficient and the State does not support its enhancement.
4. After hearing the learned counsel for the parties and going through the record it has been observed that the appellant had been apprehended red-handed by a police party while in possession of a huge quantity of narcotics: The report submitted by the Chemical Examiner regarding a sample of the recovered substance is in the positive. Both Muhammad Iqbal, ASI (PW1) and Muhammad Azam, SI (PW5) were public servants performing their official duties and the learned counsel for the appellant has failed to point out any background of bitterness and between the said witnesses and the appellant so as to prompt the former to falsely implicate the latter in a case of this nature. It may not be out of place to mention here that during the trial these official witnesses had not even been suggested by the defence that they had any animosity against the appellant whatsoever. The main thrust of the arguments advanced by the learned counsel for the appellant has been on the alleged violation of the provisions of Section 103, Cr.P.C. and in this regard he has placed reliance upon the cases of Kamil Zaman v. The State (1999 P.Cr.
L.J. 1546), Irshad Ahmad Malik vs. The State (2001 YLR 1123) and Hakim Ali v. The State (2001 P.Cr. L.J.
1865). We have, however, found that this argument of the learned counsel for the appellant is misconceived inasmuch as by virtue of the provisions of Section 25 of the Control of Narcotics Substances Act, 1997 the provisions of Section 103, Cr.P.C. do not apply to cases under the Control of Narcotic Substances Act, 1997. In this view of the matter reliance placed by the learned counsel for the appellant upon the above mentioned precedent cases is also inapt as in all those cases the provisions of Section 25 of the Control of Narcotic Substances Act, 1997 had not been brought to the notice of the Hon'ble Courts deciding the said cases. Apart from all this it is available on the record that the place of recovery had no shop or house situated near it and at the relevant time no other person was available at the spot so as to become a witness of the recovery from the appellant. Even the Bus Stop situated nearby was empty at that time. It may be true that Muhammad Azam, SI (PW5) had stated before the learned trial Court that many people had gathered at the place of recovery after apprehension of the appellant with the contraband narcotics but at the same time it is equally true that the said witness had gone on to state that none of such persons had shown his willingness to become a witness in this case. For all these reasons non-inclusion of any private witness as a witness of the recovery from the appellant has not been found by us to be defect serious enough to vitiate the I g appellant's conviction. The official witnesses produced in this case had made I consistent statements and the contradictions in their statements highlighted by the learned counsel for the appellant have been found by us to be minor and not of much significance. We have, therefore, not felt any reluctance in placing reliance upon the statements of such official witnesses.
5. For what has been discussed above we have arrived at a confident conclusion that the prosecution had indeed succeeded in proving the appellant's guilt beyond reasonable doubt and, thus, his conviction recorded by the learned trial Court is not open to any legitimate exception. In the circumstances of this case we have also found the appellant's sentences to be adequate and commensurate with his offence and, thus, the conviction and sentence of the appellant recorded by the learned trial Court are hereby upheld and maintained and this appeal is dismissed. The suo motu notice issued to the appellant regarding enhancement of his sentence is recalled and withdrawn, Criminal Revision No, 1122/2002 in that regard is, therefore, also dismissed.