' CH. IFTIKHAR HUSSAIN, J.---Appellant Tahir Bashir through the instant .Criminal Appeal has challenged his conviction and sentence under section 9-C of the Control of Narcotics Substances Act, 1997 recorded by Mr. Abdul Hamid, learned Additional Sessions Judge, Arifwala, District Pakpattan Sharif vide his judgment, dated 20-2-2001 in case F.I.R. No,168 registered with Police Station Sadar Arifwala, District Pakpattan Sharif on 24-3-1999.
2. He for the offence under the said section has been sentenced to 14 years rigorous imprisonment and to pay fine of Rs,50,000 and in default thereof to suffer further one year simple imprisonment.
He, however, was extended the benefit of section 382, Cr.P.C.
3. Briefly the facts relevant for the disposal of the instant appeal are that appellant Tahir Bashir was challaned to Court in the aforesaid case under section 9-C of the Act for having in his possession 1-1/2 Kg Charas and 800-grams Heroin, when he was apprehended by a policy party headed by Muhammad Yousaf S.-I./S.H.O. Of that police station on 24-3-1999 at about 2-45 p.m. From Bus Stop Chak No,57-EB falling within the jurisdiction of the aforesaid police station.
4. He was formally charged under the aforesaid section of the Act. He pleaded not guilty.
5. The prosecution at his trial had examined it's five witnesses. They were Muhammad Aslam- Constable No .532 (P.W.1), Shahid Ali-Constable (P.W.2), Muhammad As lam-C onstable No . 274, Muhammad Khan-HC (P.W.4) and Mehr Muhammad Yousaf-Inspector (P.W.5).
6. The reports Exh. PD and Exh. PE of the Chemical Examiner were tendered in the evidence.
7. The appellant in his examination under section 342, Cr.P.C. Had denied the allegation appearing against him in the prosecution evidence. He pleaded innocence. According to him, nothing was recovered from his possession. The police had arrested him from Bus Stand Arifwala and falsely involved in the instant case to show their Karwai. He has produced one witness namely Muhammad Ajmal (D.W.1) in his defence. He however, did not opt to depose on oath as required under section 340(2), Cr .P.0 .
8. The learned trial Court after hearing the parties came to the conclusion that the prosecution stood succeeded in proving the charge against him beyond any shadow of reasonable doubt. It so, has convicted and sentenced him as mentioned above.
9. It has been contended on his behalf that the report Exh. PD and Exh.PE were not admissible in evidence being the attested copies of the originals of reports and in this regard reliance has been placed upon the case of Gul v. The State (PLD 1977 Karachi 1019) and Shafa Ullah and another v. The State (1984 PCr.LJ 3195) (Federal Shariat Court); that according to the complaint Exh. PA and the evidence of Mehr Muhammad Yousaf-Inspector/I.O. (P.W.5), 10-grams as sample was separated from 800-grams Heroin allegedly recovered from him while the report Exh.PE of the Chemical Examiner has shown that only one gram was sent there for analysis and his opinion and hence, if at all it may be believed that the Heroin in fact was recovered from him, the quantity of that narcotics substance would be deemed as only one gram and not more than that; that according to the complaint Exh.PA the same was drafted at 2-45 P.M. On the relevant day and the formal F.I.R.
Exh.PA/1 was recorded at the police station at 3-10 P.M. The same day and it, thus was within a span of about 25 minutes from the same while the distance of the police station from the place of recovery is five miles and it thus could possibly be not recorded at the police station within that period of time and this fact available in the evidence is suspicious qua the bona fide of the prosecution in the matter; that there are some contradictions inter se the statements of the recovery witnesses and the same make the recovery from him not free from doubt; and that in any case his sentence is too severe to be maintained in the facts and circumstances of the case as he is a first offender and has suffered detention for a period of about 5-3/4 years right from his arrest.
10. As against the same, the learned State counsel has supported the impugned judgment saying that the prosecution as per it's evidence on the record has successfully brought home the guilt to him; and that as the heavy quantity of the narcotics substance had been recovered from him and so he was duly punished and there exists no circumstances to take lenient view in the matter of his sentence.
11. We have carefully considered the submissions made from both the sides with the help of available record.
12. As said above that the prosecution in support of it's case against him has produced it's five witnesses besides the above mentioned reports of the experts. Out of them three were formal witnesses and the two of recovery of the narcotics substances in the above mentioned quantity from him.
13. Shahid Ali, constable and Mehr Muhammad Yousaf Inspector have furnished the evidence of the recovery of the Charas and Heroin from him. According to them on 24-3-1999 at about 2-45, P.M.
They had apprehended him from Bus Stop Chak No,57-EB and from his possession Charas weighing 1-1/2 Kilograms and Heroin weighting 800 grams were recovered. There has been found unanimity in their deposition on the material aspects of this recovery. There has absolutely not been found any material contradiction in them on that aspect of the matter. It may be mentioned here with concern that no material discrepancy at all in their deposition inter se as regards the recovery of these narcotics substances from him has been pointed out by his side. The contention, therefore, in this regard raised from his side is absolutely without any force and the same is repelled.
14. The appellant, as is evident from his address mentioned in the statement under section 342, Cr.P.C. Belongs to Shahiwal. According to these recovery witnesses, he was apprehended at Bus Stop Chak No,57-EB falling within the jurisdiction of Police Station Sadar, Arifwala. The appellant has not denied his apprehension or arrest from that bus stop. He rather has admitted it to be so. It was in his answer to the question No,5 of his statement under section 342, Cr.P.C.
15. The recovery witnesses were posted at Police station Sadar Arifwala on the day of recovery i.e, 24-3-1999. There has been found nothing in their evidence to say that they had any animosity or ill will against him to involve him falsely in the instant case. It, rather appears that they had no such background to involve him falsely in the instant case.
16. The appellant has advanced his version through the above named defence witness that on the relevant day he had gone to Pakpattan Sharif in connection with the sale of tea bags as a sales man and a shop keeper there had quarreled with him on the sale of tea bags and at that time a constable namely Shahid Ali was standing there, who caught him from the Bus Stand Pakpattan Sharif and brought him to the police station and there they snatched Rs,13,000 from him and involved him in the instant case to usurp his money and that no narcotics substance was recovered form him.
17. His witness Muhammad Ajmal is also resident of Sahiwal. This does not appear from his evidence that he on the relevant day was present at the place where, as per his story, the alleged quarrel had taken place between the appellant and shopkeeper and he was apprehended by the aforementioned constable. His story, therefore, is not at all worthy of any belief and seems to have been fabricated just to save the appellant being his native.
18. Besides than this, it is interesting to note that the appellant himself did not put this version to the relevant recovery witnesses and specially the I.O. Mehr Muhammad Yousaf Inspector. This, therefore, could legitimately be said to be an afterthought and with obvious design of saving his skin. The same, therefore, was discardable and so was rightly discarded by the learned trial Court.
19. The two recovery witnesses seem to be independent witnesses having no reason to falsely implicate him in the case. They though were police officials but were as good witnesses as any other witness. The learned trial Court, therefore, has rightly placed reliance upon them.
20. The reports of the Chemical Examiner regarding the narcotics substances recovered from the appellant have further established on the record that these were Charas and Heroin as is the case of the prosecution.
21. The evidence of Muhammad Aslam-Constable (P.W.3) and Khan Muhammad-Constable (P.W.4) have established that the sealed parcels of these narcotics were safely delivered to the office of the Chemical Examiner. This has lent confidence to the reliability of these reports of the expert.
22. The report Exh.PD of the Chemical Examiner is to the effect that the sample sent for analysis was contraband Charas and Exh. PE to the effect that the packet received there contained the Heroin.
23. There, thus remains no doubt at all that the Charas and Heroin in the above quantity were recovered from the appellant on the above said date, time and place.
24. The contention raised on behalf of the appellant that these reports of the expert were not originals and rather the attested copies of the same and so were inadmissible in evidence is without any force because these reports have shown that the Chemical Examiner himself has signed these reports and there has been embossed the seal of his office on the same. We, therefore, have not the least doubt that these were admissible in evidence. In this regard the case of The State v. Noor Ahmad alias Thola and 3 others (1991 PCr.LJ 2007) (Shariat Court (AJ&K) can be referred with advantage. According to the same, the report of Expert (Serologist) available on the file of the trial Court though was not properly tendered in evidence but it could be taken into consideration, even in the absence of it's proper tender and proof in the manner of testimony of the expert. The position in the instant case is much ahead than that as the reports of the experts were duly tendered in the evidence. It so, could not be said legitimately that these were inadmissible in evidence. The case of Gul v. The State (PLD 1977 Karachi 1019) is also not aptly applicable to the case of the appellant as in that case the report of the Chemical Examiner was not bearing his signature but it was a copy of the same attested by his successor. It was held by their Lordships that such report was inadmissible in evidence. The same is not the position in the instant case as report Exh.PD and Exh. PE, as said above, have been signed by the export himself and these have carried the seal of his office as well. Similar is the position in the case of Shafa Ullah and another v.
The State (1984 PCr.LJ 3195) (Federal Shariat Court). In that case the report of the Chemical Examiner was not signed by him and rather by his Assistant. It was held that such report was of no help to the prosecution. The same is not the position in the instant case as the reports of the expert were signed by his ownself and bore the seal of his office as said earlier.
25. As regards the contention of short gap between the drafting of the complaint Exh.PA and recording of the formal F.I.R. Exh.PA/1 at the police station, the same is without any force. There has been found gap of about 25 minutes in between the two. The appellant was apprehended from bus stop in the city area. One could easily cover distance of five miles in 25 minutes from the place of recovery to the police station. So, the gap between the two events i.e, the drafting of the complaint Exh. PA and the recording of the formal Exh.PA/1 is absolutely not to be viewed with suspicion. The contention in this regard, thus is repelled.
26. No doubt in Exh. PA and the evidence of the P.W.5, it has been mentioned that 10-grams from each of the substance recovered from the appellant was separated as sample and according to the report Exh.PE of the Chemical Examiner, the net weight of the sealed packet of Heroin received was one gram but this could be a clerical or typographical mistake and nothing else.
27. The learned trial Court has adequately attended to his aspect of the matter and has observed similarly as has been by us above. So this was not a thing which could cast any doubt on the recovery of Heroin from the appellant. Even otherwise, the quantity of Charas recovered from the appellant had exceeded one Kilogram and the same has attracted the offence under section 9-C of the Act. It, therefore, was of no effect to the case of the prosecution, even if for the sake of arguments, it may be believed that only one gram as sample of Heroin was sent to the expert. The contention, therefore, in this regard raised from the side of the appellant is without any force and the same is repelled.
28. We as a result of the above discussion have been constrained to hold that the prosecution has successfully brought home the guilt to the appellant beyond any shadow of reasonable doubt. The observation of the learned trial Court in this regard, therefore, is absolutely correct. We, therefore, endorse the same and maintain his conviction.
29. He statedly is a first offender, which has not been controverted by the other side. He has suffered detention as an under trial prisoner and convict for a period of about 5-3/4 years. We, therefore, have found scope for taking lenient view in the matter of his sentence. We, therefore, reduce his sentence to eight years rigorous imprisonment from 14 years rigorous imprisonment.
However, the sentence of fine imposed upon him shall remain the same as ordered by the learned trial Court.
30. With the above reduction in his sentence, we dismiss his appeal.
Sentence reduced.