The appellant has called in question the Judgment dated 17-12-2003 rendered by learned Sessions Judge, Dera Ismail Khan whereby he has been convicted and sentenced to suffer two years' RI and fine of Rs,1000 or in default, to undergo further SI for four months under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979.
2. Feeling aggrieved, the appellant has challenged his conviction and sentence by way of instant appeal.
3. The prosecution story in brief is that IHC Rabnawaz (since dead), Police Station Cantt: Dera Ismail Khan was on `Gashe on 29-7-2000 at 1400 hours when he received information that one Shakeel Abbas son of Atta Hussain Shah accused is engaged in selling heroin. The IHC went in search of the accused and arrested him from the fields situated in the limits of Village Sheroowala. The personal search of the accused led to recovery of 20 grams of heroin wrapped in a plastic envelope. One gram of heroin was separated from the recovered contraband for the purpose of chemical examination. The remaining was sealed into a parcel vide recovery memo (Exh.PB) witnessed by Muhammad Nawaz IHC and Constable Irshad Ali. The accused was formally arrested. A 'Murasila'
(Exh.PA/1) was drafted under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and sent to the police Station where its contents were correctly incorporated in F.I.R (Exh.PA) by SI Nasrullah (PW-2).
4. At the trial, the prosecution in order to prove its case, produced three witnesses namely Inspector Aziz Khan (P.W.1), S.-I. Nasrullah (P.W.2) and FC Irshad Ali (P.W.3). On conclusion of the prosecution evidence, statement of the accused was recorded under section 342, Cr.P.0 wherein he repudiated the prosecution allegations and claimed to have been charged falsely. In reply to a question as to what is his statement and why he has been charged, the accused stated: "I am innocent and have falsely been charged. In fact on the day of occurrence police was after a person namely Muhammad Jamil, unfortunately my house is situated near the place of that occurrence. The said person namely Muhammad Jamil on seeing the police party rushed towards the street and entered into my Baithak and police party also entered into my house. I objected to the police officials not to enter into my privacy and I promised them to produce that fellow to them.
On this altercation took place in between myself and the police party. Rabnawaz and Muhammad Nawaz became annoyed and after arrested the said Jamil which was produced to them by myself, they also took me to the Police Station where they also arrested me and involved me in a fake case by splitting into two shares the heroin thus recovered from the possession of Muhammad Jamil. I am innocent and I have been victimized by the police."
' He led no evidence in defence nor appeared as his own witness on Oath as required under section 340(2), Cr.P.C.
5. After concluding the trial, the Court came to the conclusion that prosecution has been able to bring home guilt to the accused beyond reasonable doubt and convicted and sentenced him or the terms stated above.
6. Mr.Ghulam Hur Khan Baloch, Advocate for the appellant submitted that the evidence produced by the prosecution is full of contradictions and omissions; that the prosecution has not been able to prove its case against the appellant. The doubt invariably is to be extended to the accused person and that the investigation has not been conducted in a proper manner which has materially prejudiced the interest of the appellant. To substantiate the pleas, he placed reliance on Mushtaq v. The State (2002 PCr.L.J (Peshawar) 1312).
7. Defending the impugned Judgment, Muhammad Sharif Chaudhary, learned Deputy Advocate General for the State contended that the learned trial Judge has correctly appraised evidence brought on record and his assessm ent is neither unreasonable nor perverse or in disregard of accepted principles governing appraisal of evidence. P.W. Irshad Ali, one of the members of the police party has fully supported the prosecution version and successfully qualified the test of cross examination which though was sufficiently lengthy, but he stood firm as a consequence whereof, defence failed to extract anything favourable to the accused.
8. Having heard the arguments of learned counsel for the parties at some length, in the light of the material on file, I find that the prosecution has brought sufficient material on file to prove that pursuant to credible information, the appellant was arrested and during search, 20 grams of heroin were recovered from his possession. The Investigating Officer separated one gram out of the recovered contraband and sent the same to Chemical Examiner for examination and the report (Exh.PD) was received which is in positive. Prosecution has sufficiently proved the case against the appellant whose presence at the spot at the relevant time has been accepted by the appellant and in the absence of any enmity, there is no chance of false implication and conviction is liable to be maintained. The plea of the appellant regarding his false involvement in the case seems to be afterthought and has no basis. It is an accepted principle of law that when an accused at a criminal trial takes a specific plea, the onus invariably shifts and he is required to produced evidence and prove his plea or at least his plea should be supported by the attending circumstances and it should not be unfounded altogether.
9. Regarding submission of learned counsel for the appellant that the evidence on record is discrepant and full of contradictions and infirmities on account of which the appellant is entitled for a finding of acquittal, it may be observed that the learned counsel has not been able to point out any discrepancy or flaw creating dent in the prosecution story. I am satisfied that the heroin in question has been recovered from personal possession of the appellant and he is guilty of the offence with which he is charged. The prosecution has succeeded to establish its case and the appellant has failed to prove his innocence.
10. In view of the above, the conviction and sentence recorded against the appellant by learned trial Court is maintained and his appeal against conviction is dismissed.