MAHMOOD AZAM---Appellant versus THE STATE---Respondent Criminal Appeal No.1961 of 2001, heard on 11th November, 2003.
Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(b)---Appreciation of evidence---Members of the raiding party and the witnesses of recovery had supported each other and the prosecution case on all material aspects--- Prosecution evidence was trustworthy and confidence-inspiring and the contradictions pointed out therein were minor and immaterial---Police officials below the rank of Sub-Inspector had correctly proceeded to apprehend the accused and check the crime on receiving the secret information, otherwise if they had consumed time in arranging for the presence of a Sub-Inspector the accused might have escaped in the meanwhile-- Recovery witnesses had no previous enmity with the accused---Defence plea of false implication was merely an afterthought---Conviction and sentence of accused were maintained in circumstances.
[pp. 3126, 31271 A, B & C Ali Hassan v. The State PLD 2001 Kar. 369 and Khalid Nawaz v. The State 1998 PCr.LJ 2008 ref. Rana Muhammad Anwar for Appellant.
Date of hearing: 11th November, 2003.
' M. JAVED BUTTAR, J.---The appellant, Mahmood Azam, was tried in crime case F.I.R. No.54, dated 22-2-2001, registered at Police Station Dhullay, Gujranwala, for the offence under section 9(b) of Control of Narcotic Substances Act, 1997, for the alleged recovery of Charas weighing 494 grams from his possession. The learned trial Court, vide its judgment, dated 22-11-2001, convicted the appellant under section 9(b) of Control of Narcotic Substances Act, 1997, and sentenced him to Rigorous Imprisonment for two years and six months and a fine of Rs.10,000 or, in lieu thereof, to further undergo R.I. For three months. He was, however, extended the benefit as contemplated under section 382-B, Cr.P.C. The appellant, through the present appeal, has assailed the validity and correctness of his conviction and sentence.
2. The facts as narrated by complainant, Muhammad Munsha, A.S.-I. (P.W.3), in the complaint (Exh.
PB) are that on 22-2-2001, he along with Constables Gulzar Ahmad, Sultan Ahmad and Muhammad Rafiq, was on patrol duty and was present near Shelton Hotel, Gujranwala, and he received a spy information that a person, whose name and address etc. Was later on discovered as Mahmood Azam son of Muhammad Hassan, was selling Charas at Shama Road and if a raid is conducted immediately, the accused can be apprehended. The raid was thereafter conducted at the spot on the pointation of the informer and the .Accused was apprehended and searched. Charas weighing 494 grams, wrapped in a black shopper, was recovered from him, out of which 10 grams was separated as a sample for the analysis by the Chemical Examiner. The parcels of sample and rest of Charas were sealed and were taken into possession vide recovery memo. (Exh.PA). On the basis of the complaint, formal F.I.R. (Exh.PB/1) was recorded.
3. The accused/appellant was formally charge-sheeted on 20-6-2001, to which he pleaded not guilty and claimed trial.
4. The prosecution, to prove its case, produced five witnesses.
5. P.W.1, Iftikhar-ul-Hassan, Constable, stated that on 3-4-2001, Moharrir handed him over a sealed parcel allegedly containing Charas for its onward transmission to the office of Chemical Examiner, Lahore, which was delivered by him in tact on the same day.
6. P.W.2, Muhammad Rafiq, Constable, was member of the raiding party and also an attesting witness of the recovery memo. (Exh.PA). He fully supported the prosecution case and the complaint. In the cross-examination, he stated that the complaint, recovery memo. And rough site-plan were drafted at the spot by Muhammad Munsha, A.S.-I., who also recorded the statements of the witnesses at the spot. He further stated that the raiding party remained at the patrol duty and reached Police Station at 11-00 p.m and did not go back to the spot in connection with the investigation of the case.
7. P.W.3. Muhammad Munsha, A.S.-I., supported his complaint (Exh.PB). In the cross-examination, he stated that the Investigating Officer came at the spot along with Sultan, Constable, after about 30 minutes.
8. P.W.4, Riaz Ahmad, Moharrir, drafted formal F.I.R. (Exh.PB) and on the same day, i.e. 22-2-2001, Murtaza Khan, S.-I., delivered him one sealed parcel allegedly containing 10 grams of Charas for safe custody in the Malkhana and he handed over the same on 4-3-2001 to Constable, Iftikhar-ul- Hassan (P. W.1) for its transmission to the office of Chemical Examiner, Lahore.
9. P.W.5, Muhammad Murtaza Khan, S.-I., as entrusted with the investigation of the case. He inspected the spot and prepared rough site-plan (Exh.PC). He further stated that he recorded the statements of the P.Ws., investigated the case and after finding the accused guilty challaned him.
In the cross-examination, he explained that Exh.PC (site-plan) was drafted under his dictation, which was given to Muhammad Munsha, A.S.-I. (P.W.3). Similarly, the statements of P.Ws, under section 161, Cr.P.C., were written by Muhammad Munsha, A.S.-I., under his dictation.
10. The learned Special Prosecutor gave up Gulzar Ahmad, Constable, as unnecessary, tendered in evidence the report of Chemical Examiner as Exh.PD and closed the prosecution case.
11. Statement of the accused was recorded under section 342, Cr.P.C. He denied the allegations and in reply to question No.4 that "Why this case against you and why the P.Ws. Shave deposed against you", he stated as under:- ' Answer.
"I am a rickshaw driver. About two days prior to the alleged occurrence, a quarrel took place between me and police officials of Police Station Dhullay, on account of fare of rickshaw. Both the police officials had threatened me that they will teach me a lesson of quarreling and they have falsely involved me in this case. On 22-2-2001, I was picked up by Muhammad Munsha A.S.-I. On the instruction of Ghulam Murtaza Khan S.-I., Police Station Dhullay and they falsely involved me in this case."
12. The accused opted not to appear as his own witness on oath under section 340(2), Cr.P.C. And did not produce any evidence in defence.
13. We have heard the learned counsel for the appellant, the State and have seen the record with their assistance.
14. It is submitted by the learned counsel for the appellant that sections 21 and 22 of Control of Narcotic Substances Act, 1997, provide that search can be made by a Police Officer not below the rank of Sub-Inspector and the complainant, being an A.S.-I., was not competent to search the accused, that the P.Ws. Never met the Investigating Officer at the spot, all the proceedings were conducted at the Police Station, the did not visit the spot, statements of the P.Ws. Are full of contradictions and discrepancies, the appellant has been involved falsely in this case in a mala fide manner by the police as the appellant had quarreled with the police officials just two days before the occurrence and the prosecution has failed to prove its case, hence the appellant is entitled to be acquitted of the charge. The learned counsel for the appellant has also placed his reliance on Ali Hassan v. The State (PLD 2001 Karachi 369) and Khalid Nawaz v. The State (1998 PCr.LJ 2008).
15. Learned counsel for the State has opposed the appeal and has supported the impugned conviction and sentence. It has been submitted by him that the appellant is specifically named in the F.I.R., he was caught red-handed, recover of narcotics from the appellant stands proved, P.Ws.
Had no mala fide or enmity with the appellant to suggest false implication, the Police Officials are as good witnesses as others, the investigation was conducted by P.W.5, Muhammad Murtaza Khan, S.-I., and he 'submitted the challan in Court and that the learned trial Court has already taken a lenient view in awarding the appellant a lesser punishment of two and a half years' R.I. As against the maximum punishment of 7 years R.I. Provided in section 9(b) of . Control of Narcotic Substances Act, 1997.
16. Muhammad Rafiq, Constable (P.W.2) and Muhammad Munsha, A.S.-I. (P.W.3) were the members of the raiding party and the witnesses of recovery. They have supported the prosecution case and each other, on all material facts. Their statements are trustworthy and confidence-inspiring. The contradictions, pointed out by the learned counsel for the appellant, are minor and immaterial. It may also be mentioned here that the police officials are as good witnesses as private witnesses, who do not come forward in such the like cases to witness the recoveries. Even otherwise, the provisions of section 103, Cr.P.C. Are not applicable to the narcotics cases as they stand specifically excluded through section 25 of Control of Narcotic Substances Act, 1997. The argument of the learned counsel for the appellant that all the proceedings of search and apprehension of the appellant by an officer below the rank of Sub-Inspector were illegal and in violation of sections 21 and 22 of Control of Narcotic Substances Act, 1997, has no force. The A.S.-I. And the other members of the raiding party, while on patrol duty received a secret information that a person was standing at -Shama Road and selling Charas and if raid is conducted, he can be apprehended. The A.S.-I.
And the other police officials, who were disclosed this secret information, could not have ignored this information on the ground that they were below the rank of Sub-Inspector and if they had consumed time in arranging for the presence of Sub-Inspector, there was a risk that the accused might have escaped in the meanwhile. They, therefore, correctly proceeded to the spot to apprehend the accused and check the crime. The recovery witnesses had no previous enmity with the appellant to suggest false implication. The defence plea that the appellant had been falsely involved because he had quarreled with the police officials just two days before the alleged occurrence, is merely an afterthought. It has no substance and it is not proved.
17. In our opinion, the prosecution has established its case against the appellant beyond reasonable doubt and the learned trial Court correctly convicted and sentenced hirn.
18. In view of the above mentioned, we find no merit in this appeal, which is accordingly dismissed and the appellant, who is on bail, shall be taken into custody to undergo the rest of the sentence.