Raja Fayya z Ahmed, J.--By this Jail Petition leave to appeal has been sought for against the judgment dated 8.6.2004 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No, 84/2004 preferred by petitioner, Muhammad Naeem, against his conviction and sentence of life imprisonment under Section 9(c) of the Control of Narcotic Substances Act, 1997, hereinafter referred to as the Act', with a fine of Rs, 2,00,000/- or in default in the payment of fine to further undergo RI for one year awarded by the learned Additional Sessions Judge/Special Court under the CNS Act, Islamabad, hereinafter called as the Trial Court', has been dismissed.
2. The precise facts of the case are that pursuant to murasila Exh. PA sent to the police station by PW Ehsan Elahi S.I. Industrial Area, Islamabad, case Crime No, 559/2001 was registered with the aforesaid police station on 9.11.2001 at about 4.40 p.m. under Section 9(c) of the Act against the petitioner, who was apprehended on the spot for having been found in possession of 90 slates charas weighing 9 K.Gs. After completion of investigation, challan for trial of offence was submitted in the learned trial Court. The accused was indicated on the charge in view of the accusation, as contained in the murasila and the incriminating material produced with the challan, to which he did not plead guilty and the prosecution in order to substantiate the accusation, produced four witnesses namely Muhammad Gulfraz ASI PW-1, Maqsood Ahmed ASI PW-2, Khalid Masood FC PW- 3 and Ehsan Ellahi SI/complainant of the case PW-4.
3. After close of the prosecution case, the petitioner was examined by the learned trial Court under Section 342 Cr.P.C. in the light of the incriminating evidence produced at the trial, which he denied and disputed. He took the plea, while answering to Question No, 4 that alleged charas was recovered by the police from a boy standing on his side, who made good his escape and instead he has been falsely involved in the case. The accused did not opt to record his statement in disproof of the charge within the purview of Section 340(2) Cr.P.C. nor produced any evidence in defence.
4. After hearing the parties, the learned trial Court convicted and sentenced the petitioner as hereinabove mentioned in Para No, 1 supra of this judgment.
5. The case of the prosecution, as unfolded in the murasila, is that on 9.11.2001 at about 3.15 p.m. PW Ehsan Ellahi SI was on patrolling duty and was present at Afridi Adda, situated near Pir Wadhai Chowk, Islamabad alongwith Muhammad Naeem and Muhammad Nadeem LHCs, Khalid Mehmood and Munir Hussain FCs, when he received a spy information that a person in possession of a large quantity of charas is present near to the petrol pump at the bus stop and if a raid without loss of time is conducted, he can succeed in recovering charas, therefore, above said PW alongwith the police officials proceeded close to the suspected person, who on noticing the policy party attempted to slip away but was overpowered with the help of police officials and on being enquired the said person disclosed his name and parentage, as Naeem s/o Rehmat Hadi, r/o Sher Pao, district Charsada, holding black shopping bag in his right hand, which was checked and during the process, 90 'slates of charas weighing 9 K.Gs was recovered from the shopping bag.
Accordingly, the petitioner was apprehended on the spot and for the purpose of analysis of the illicit substance 10 grams from each slate was segregated by way of samples and was sealed into a parcel, whereas, the remaining quantity of illicit substance/charas was sealed into a separate parcel. It has been noted in the murasila that many people were present at the spot but none was ready to become a witness in the process of checking of the bag and recovery.
6. PWs Khalid Mehmood and Ehsan Ellahi SI/complainant in the case have supported to the case of the prosecution and they were extensively subjected to the cross-examination by the learned defence counsel, yet, their testimony remained firm, consistent and convincing and they each successfully stood the test of cross-examination on all the material particulars of the case.
According to Muhammad Gulfraz, ASI PW-1, the samples of the charas were handed over to him by the I.O. alongwith the remaining quantity of the charas sealed into two separate parcels on the same date and he kept the same in the malkhana. On the following day i,e, on 10.11.2001, he delivered the sealed parcel of the samples of the charas to Khalid Mehmood Constable for transmission to the office of the Chemical Examiner, Rawalpindi, but the latter office did not receive the same for the reason that the office working hours being over so the same was brought back and delivered to him by Khalid Mehmood Constable, which he retained in malkhana and on 12.11.2001, the same was delivered to the office of Chemical Examiner, Rawalpindi through the above said constable in intact condition. Maqsood Ahmed ASI PW-3 registered the formal FIR Exh-PA/1 on receipt of murasila.
7. The learned ASC for the petitioner has been heard at length. He mainly contended that the case in hand is comprising of two versions i,e, one of the prosecution and the other advanced by the petitioner at the trial during his examination made by the trial Court under Section 342 Cr.P.C., which according to the learned ASC seems to be more rational and probable, therefore, in view of the well established principles of safe administration of criminal justice to be preferred to the one put forth by the prosecution. The learned ASC placed reliance on the judgments i,e, Nasir Khan v.
The State (1997 M LD 1473(Lahore)) by contending that 1/3rd of the illicit substance was since not sent to the Chemical Examiner for analysis, therefore, the positive result of the test analysis losses its significance, and; Wazir Muhammad v. The State (1992 SCM R 1134), in support of the arguments that the prosecution has failed to establish the charge beyond shadow of any reasonable doubt.
8. The contentions noted above put forth by the learned ASC for the petitioner have been considered in the light of the evidence produced at the trial by the prosecution, the examination of the accused made under Section 342 Cr.P.C. including the impugned judgments and the case law cited by the learned counsel carefully and minutely.
9. It is worthwhile to note that the latter citation of the reported judgment of this Court related to the case under Articles 3 & 4 of the Prohibition (Enforcement of Hadd) Order 1979, in which the prosecution was supposed to establish the charge through evidence up to the hilt, whereas; the instant case was registered under Section 9(c) of the Act against the petitioner for having been found in possession of the illicit substance in violation of the provisions of Section 6 of the Act, therefore, as provided by Section 29 of the Act, initial onus is to be discharged by the prosecution in the light of the accusation made against the accused person and, thereupon; the Court trying the offence has to presume, unless and until the contrary is proved, that the accused has committed the offence under this Act, as enumerated in Section 29 of the Act. This Act, as envisaged by the provisions of Section 76 of the Act, shall have the overriding effect notwithstanding anything contained in any other law for the time being enforce including the Prohibition (Enforcement of Hadd) Order 1979. Accordingly, the prosecution was only required to discharge the initial onus in support of the allegations and the Court, thereupon; to presume the same as correct until and unless proved otherwise by the accused facing the trial for an offence under the Act in respect of the act committed by him as enumerated in Section 29 of the Act.
10.In this case, the prosecution has successfully discharged the initial onus by even substantiating that the petitioner at the relevant time on the date mentioned above was found in possession of 9 K.Gs. charas recovered by Ehsan Ellahi PW-3 in presence of the police officials and the samples of the charas weighing 10 grams from each of the recovered charas slate on analysis conducted by the Chemical Examiner was found to be charas, which the defence failed to impeach or discredit.
11.Moreover, no attempt was made at the trial by the defence at any stage of the proceedings to request for summoning the Chemical Examiner in Court to test the expert about the minimum required quantity of substance necessary for analysis. It cannot be said that the samples taken from the illicit substance were deficient in quantity to result into an effective finding. Moreover; had it been so in all probabilities the Chemical Examiner would not have given his report after examination of the substance for want of less quantity of the substance sent to him for the purpose, thus the presumption is that the required quantity of the samples was made available to the Chemical Examiner sufficient for the purpose of chemical examination.
12.The former case law on the point related to a bail matter in which it has been observed by the learned Court that 1/3rd of the substance is required to be sent for the chemical examination by the expert has not been based on any treatise on the subject or on a universally recognized scientific formula, hence is not applicable to the case in hand and is distinguishable for technical reasons.
13.The contention of the learned ASC is also devoid of substance, for this being not a case of two versions, as the petitioner simply took the plea, while examined under Section 342 Cr.P.C. that the alleged charas was recovered from another boy standing near to him at the relevant time, who made good his escape appears to be totally unsatisfactory and baseless for the reason that the petitioner even himself did not appear in the witness box in support of his plea nor produced any evidence to show/indicate such plea to be reasonable or even probable, therefore, no benefit can accrue to the petitioner merely because in answer to the question put to him during his examination under Section 342 Cr.P.C., he advanced the above noted plea. The reason or plea, which even otherwise does not seem to have any rational or probable basis to be believable or possible in the given facts and the circumstances of the case, would not make it a case of two versions i,e, one of the prosecution and the other of the defence.
14.In our considered view, the concurrent findings of facts and the conclusions drawn by the learned two Courts below do not suffer from any legal infirmity or impropriety requiring reappraisal of the evidence, therefore, this petition for leave to appeal being without any substance is dismissed and leave to appeal is refused accordingly.