' CH. IFTIKHAR HUSSAIN, J.---Appellant Nasrullah alias Nasrulli was tried under section 9(b) of the Control of Narcotic Substances Act, 1997 in case F.I.R. No.127, dated 12-5-2003 registered with Police Station Sahiwal, District Sargodha for on the same day at about 1-45 p.m. Having sold Heroin to a fake customer sent by the Police party and having in his possession 503 grams Heroin.
2. On the conclusion of the trial he was found guilty of the charge. Mr. Muhammad Hafeezullah Khan, learned Additional Sessions Judge, Sargodha vide his judgment dated 17-3-2004 convicted him under section 9(b) of the Act (supra) and sentenced him to two years and six months rigorous imprisonment with a tine of Rs.5,000. In case of default to further suffer one month's simple imprisonment.
3. Briefly the facts relevant for the disposal of the instant appeal are that Muhammad Idrees, S.I. Of the aforesaid police station along with the Excise and Police Officials were presentat Pull Sem Nala Vijh, falling within the jurisdiction of the said police station in order to check the drug paddlers. He received information there that Nasrullah alias Nasrulli was selling Heroin near the Baithak of notorious dealer Mukhtar Ahmad, Muslim Sheikh. He on that information sent a fake customer to him to purchase Heroin. The fake customer purchased Heroin from him. He thereupon arranged a raiding party. The party reached at that place and apprehended Nasrullah alias Nasrulli. On his personal search Heroin wrapped in a polythene bag was recovered from his right side pocket of the shirt. On weighing, it came to be 503 grams. Out of the same, two grams were separated as sample for sending to the expert for Chemical Analysis. The sample and the remaining Heroin were sealed into two separate parcels and taken into possession vide memo. Exh.P.B. The said S.I. Drafted complaint Exh.P.A. And sent it to the police station for formal registration of the case. On the same day at about 2-40 p.m. Formal F.I.R. Exh.P.A./1 was registered at the police station by Muhammad Mumtaz, S.I. Vide Rappat No.12. Muhammad Idrees, S.I. Conducted investigation in the case. He prepared site-plan Exh.P.C. Without scale and recorded the statement of the witnesses under section 161, Cr.P.C. He completed his investigation and challaned the appellant to Court.
4. The appellant was formally charged under section 9(b) of the aforesaid Act for having in his possession 503 grams Heroin on the said date, time and place when was apprehended by the raiding party. He pleaded not guilty.
5. The prosecution at his trial examined its five witnesses in all. They were Muhammad Mumtaz S.I.
(P.W.1), Muhammad Yousaf-C (P.W.2), Arshad Ali-HC (P.W.3), Muhammad Idrees, S.I. (P.W.4) and Nazir Hussain, S.I. (P.W.5).
6. The report of the Chemical Examiner Exh.P.E. Was tendered in the evidence.
7. The appellant in his examination under section 342, Cr.P.C. Denied the allegation of recovery of the Heroin in the above quantity from him. He pleaded his false implication in the case on the part of the police to show efficiency.
8. He, however, did not opt to produce evidence in his defence and to depose on oath in disproof of the allegation appearing against him in the prosecution evidence.
9. It has been argued on his behalf that he has falsely been roped in on account of an attempt on the part of the police to show efficiency; that there are material discrepancies inter se statements of the recovery witnesses; that there is cutting or overwriting on the date underneath the statements of the recovery witnesses; that there is cutting or overwriting on the date underneath the statement under section 161, Cr.P.C. Of Muhammad Yousaf-C (P.W.2) and Arshad Ali-HC (P.W.3), that these facts make the case against him not above doubt and that in any case his sentence is severe and the same may be reduced.
10. As against the same, learned counsel for the State has supported the impugned judgment saying that the prosecution as per it's evidence on the record has fully brought home the guilt to the appellant beyond any shadow of reasonable doubt, that there is no material discrepancy at all inter se the statement of the recovery witnesses and the minor, if any the same hardly cast any adverse effect upon the prosecution case; that cutting in the statement under section 161, Cr.P.C. Of Muhammad Yousaf (P.W.2) and Arshad Ali (P.W.3) regarding its date was corrected due to mistake based upon inadvertence and such mistake could be there in the ordinary course of things and it was not for any ulterior purpose; and that heavy quantity of Heroin of the value of more than one lac has been recovered from the appellant which could not be planted upon him by any police official; that the leniency has already been shown to him by the learned trial Court in the matter of sentence to him; and that in any case the conviction and sentence of the appellant is perfectly justified inv view of the evidence on the record.
11. We have considered the submissions made from both the sides with the help of the available record.
12. The prosecution in order to prove the charge of the recovery of Heroin in the above quantity from the appellant has relied upon its witnesses Muhammad Idress. S.I. (P.W.4) and Nazir Hussain S.I. (P.W.5).
13. They both unanimously have deposed that the Heroin in the above quantity has been recovered from him on 12-5-2003 at about 1-00 p.m. In front of the Baithak of the above-mentioned Mukhtar Ahmad. There is complete unanimity in the deposition of two as regard all the major details of such happening. There has hardly been found any major or material discrepancy in the two any of such aspects of the matter.
14. The learned counsel for the appellant has drawn our attention to a minor discrepancy in the statement of the two and that is Muhammad Idrees, S.I. (P.W.4) has stated that fake customer purchased one gram Heroin from the appellant, whereas Nazir Hussain, S.I. (P.W.5) that such quantity might be two grams. Firstly, this is not a material discrepancy at all in the statement of the two. Secondly, it is not definitely so. It is because of the fact that no doubt P.W.4 has stated that fake customer purchased one gram Heroin from the appellant but P.W.5 did not categorically state so.
He has stated that the weight of the Heroin purchased by the fake customer from the appellant was not in his knowledge. He, however, conceded that it might be two grams. So, his assertion is not categorical in that regard. He just has stated so by recalling his memory. His statement was recorded about nine months after the alleged recovery of the Heroin from the appellant. It is their daily official business to participate in such-like raids and recoveries. It is not possible for everyone to remember the exact and the minutest details of an event because human memory is fallible and by lapse of time event may disappear/remove from one's memory. So, this was not such a thing to diminish the value of the evidence of the recovery witnesses. This was not a significant discrepancy at all, if it may be taken to be so. Anyway such slight variation in the statements of these two, if at all for the same may be taken to be so for the sake of arguments.. The same, thus has hardly any adverse effect upon the evidence of the two recovery witnesses. The contention in this regard, therefore, is repelled. We, however, have found no other significant or material discrepancy in the statement of the two recovery witnesses.
15. Their consistent narration of the event of the recovery from the appellant has led us to believe that they are worth-relying the witnesses. Their evidence has established that the Heroin in the above quantity was recovered from the possession of the appellant at the above given date, time and place. They, no doubt are police officials but this itself was not sufficient to discredit them in their testimony. They, while appeared to have no animus at all against him to involve falsely in the instant case. The learned trial Court, therefore, has rightly believed their evidence. We endorse it's approached in that behalf.
16. The evidence regarding the safe custody and dispatch of the parcel of Heroin and the remaining recovered from the appellant has established the credibility of the report of the Chemical Examiner.
17. Muhammad Yousaf-C (P.W.2) has deposed that he was handed over the sealed parcel of the sample of Heroin on 27-5-2004 to transmit to the Office of the Chemical Examiner and he delivered the same intact in that Office on the next day i.e. 28-5-2004.
18. No doubt it has been contended on behalf of the appellant that there is cutting on the date of his statement under section 161, Cr.P.C. And it was made as 28-5-2003 from 28-6-2003. The witnesses has admitted it to be so but this was not such a thing to be carrying any adverse effect on his reliability. The mention of date of the statement under section 161, Cr.P.C. Of the witnesses as 28-6-2003 instead of 28-5-2003 could be result of inadvertence. This, however, was rectified by way of cutting. This cutting has not appeared to be result of any ulterior motive on the part of the Investigating Officer. It is also significant to mention here that no clarification was sought from Muhammad Idrees, S.I./Investigating Officer in this regards. So, such cutting on the statement regarding the date of statement of the witness was not at all carrying any adverse effect on the reliability of the evidence 'of the witness. The contention in this regard has been found to be without force. The same is repelled.
19. His evidence, however, has ensured that the parcel of the sample of Heroin was dispatched to the expert intact.
20. Arshad Ali, H.C. Has also deposed almost on similar lines. He was Muharrer of the police station at the relevant time. The parcel of sample of Heroin and the remaining one had remained in his custody. According to him, these were never tampered with in his custody. It may be mentioned here that similar suggestion as was put to Muhammad Yousaf-C (P.W.2) regarding cutting on the date of his statement under section 161, Cr.P.C. Was put to him. He though has admitted that it was so there but he has categorically stated that his statement under section 161, Cr.P.C. Was correctly recorded on 28-5-2003, so, any alleged cutting on the date of his statement under section 161, Cr.P.C. Before the police was of no adverse effect on the veracity of his evidence.
21. The evidence of these two witnesses have amply established that the parcel of sample was dispatched to the expert in tact. This has lent authenticity in the report of the expert.
22. The report Exh.P.E. Of the expert is to the effect that the sample sent for chemical analysis was Heroin. This report has lent corroboration to the evidence of the recovery witnesses that the substance recovered from the appellant was in fact Heroin.
23. The plea of the appellant that he has been implicated falsely in his case by the police in order to show efficiency has been found to be without any substance. It firstly was due to the fact that nothing in support of the same was brought on the record by the appellant to believe that it was actually so. Secondly, the raid and the recovery proceedings were attended to by not only the police officials but the Excise Staff as well. There has been attributed no animus or at all of these witnesses with the appellant to falsely involve him in the instant case. The plea, therefore, advanced by the appellant was hollow. The same, therefore, was rightly rejected.
24. From the above discussion, we are absolutely convinced that the prosecution has fully brought home the guilt to the appellant beyond any shadow of reasonable doubt. The learned trial Court, therefore, has rightly convicted and sentenced him. The Heroin in the above quantity has been recovered from the appellant. The learned counsel for the appellant has himself admitted before us that the value of the recovered Heroin may be more than one lac. The quantity of the heroin recovered from the appellant, thus was quite heavy. The learned trial Court has awarded him 2-1/2 years sentence only to him while such offence is punishable with imprisonment upto seven years besides fine. So, we have noticed that the learned trial Court has already taken sufficient lenient view in the award of sentence to him. We, therefore, have not been persuaded to show any further indulgence to him in the matter of sentence. We, thus, maintain his conviction and sentence.
25. The instant appeal has been found to be without any force. The same is dismissed.