' HASNAT AHMAD KHAN, J.---Abdul Basit appellant was convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 vide judgment dated 1-12-2001 handed down by the learned Sessions Judge, Bahawalpur and was sentenced to imprisonment for life and a fine of Rs.5,00,000 (five lacs) or in default of payment thereof to undergo simple imprisonment for two years. The appellant has challenged his conviction and sentence before this Court through the present appeal.
2. Brief facts of the case as unfurled in the F.I.R. No.12 of 1998 registered at the instance of Muhammad Afzal, S.-I., P.W.2, with police station Anti-Narcotic Force, Bahawalpur, are that during the investigation of a case F.I.R. No.11 of 1998 dated 12-8-1998, registered at police station A.N.F.
Bahawalpur, in respect of offence under section 9(c) of the control of Narcotic Substances Act, 1997, Abdul Basit appellant made a disclosure that he had concealed chars and opium in his house which he could get recovered. Upon his disclosure, Muhammad Afzal, S.I. Along with other members of the force mentioned in the complaint under the supervision of Cap. Noor-ud-Din, went to the house of the appellant/convict situated in Kachi Abadi, Yasrab colony, Khairpur Tamiwali, where 17 kilograms chars and 15 kilograms of opium in the form of packets were recovered on the pointing out of the appellant from an iron box, 10 grams of chars and 10 grams of opium were separated front each of the packets respectively and rest of the chars and opium was made into sealed parcels and complaint (Exh.PB) was sent to the police station, where, formal F.I.R. (Exh.PB/1) was registered. During the investigation, the appellant/convict was found guilty and challaned to face the trial. He was charge sheeted under section 9(c) of the Control of Narcotic Substances Act, 1997, to which he pleaded not guilty.
3. In order to bring home the guilt of the appellant, the prosecution came forward with four witnesses. Muhammad Shafiq constable appeared as P.W.1 and proved the factum of recovery of the above mentioned contraband substances. Thereafter, Muhammad Afzal, S.I. Complainant of the case entered into the witness box as P.W.2 and proved his complaint (Exh.PB) and fact of recovery of chars as well as opium at the instance of the appellant. The recovery memo. (Exh.PA) of which he was signatory was also proved by him. To prove the dispatch of 17 sealed parcels of chars and 15 sealed parcels of opium along with docket to the office of the Chemical Examiner, Muhammad Akram foot constable was produced by the prosecution as P.W.3.Fajar Khan A.S.I.
Appeared as" P.W.4 and during his examination-in-chief he stated that after receipt of the complaint (Exh.PB) he had recorded the formal F.I.R. (Exh.PB/1). He further deposed that he received sealed parcels of chars and opium for safe custody in the Maal Khana which were dispatched through him to the office of Chemical Examiner on 19-8-1998. After tendering the positive reports of Chemical Examiner Exh.PD and Exh. PE, the Special Prosecutor closed the prosecution evidence.
Thereafter, the appellant was examined under section 342, Cr.P.C. Who in reply to question No.4 replied as under:-- "I have been falsely involved in this case at the behest of my father-in-law of first wife who was annoyed with me due to second marriage. The P.Ws are police officials who have deposed falsely against me due to the influence of their superiors".
' He refused to appear as his own witness as envisaged under section 340(2), Cr.P.C. However, he produced Haji Muhammad Yar as D.W.1. The said defence witness claimed that the appellant was involved in this .Case falsely. After tendering attested copies of the statements of witnesses as Exh.DA, Exh.DB, Exh.DC and Exh.DD, the appellant closed defence evidence.
4. We have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.
5. At the very outset, it has been submitted by the learned counsel for the appellant that he has nothing to say as far as merits of the case are concerned and he would restrict his arguments only to the point that contraband chars was destroyed just before the trial and at that time notice was not issued to the appellant. He adds that by destroying the case property, the case of the appellant was 'prejudiced. He further maintains that he can only be sentenced under section 9(b) of the Control of Narcotic Substances Act, 1997, as the prosecution had only proved the recovery of 10 grams of chars and 10 grams of opium which was sent to the chemical examiner. To strengthen his arguments, he has relied upon the case of Ejaz-ur-Rehman v. The State 2005 YLR 16.
6. Learned Deputy Prosecutor-General has supported the impugned judgment. He has submitted that the case-law relied upon by the learned counsel for the appellant is not applicable to the facts and circumstances of the present case.
7. We have attended to the arguments of both the sides carefully and record has also been perused by us.
8. As far as the recovery of the contraband substance is concerned, the prosecution has proved the same beyond shadow of doubt through the statements of P.W.1 and P.W.2, who were made to face searching cross-examination, but they stood firm and conceded nothing in favour of the appellant. We have further observed that the appellant had led to recovery of chars weighing 17 kilograms and opium weighing 15 kilograms and subsequently samples of recovered substance were found to contain chars and opium respectively. Recovery witnesses had no background of or bitterness against the appellant so as to prompt them to falsely implicate the appellant in a case of this nature. Therefore, we have come to the conclusion that the learned counsel for the appellant was quite justified in submitting that barring the technical objection raised by him on facts of the case, he could not succeed.
9. As far as the sole objection of the appellant regarding destroying of the chars is concerned, we have noticed that the said objection was also raised before the learned trial Court, which had spurned the same on the basis of very cogent reasons. The case-law cited by the ,learned counsel for the appellant is not applicable to the facts and circumstances of this case which are quite distinguishable. In the case of Ijaz-ud-Din v. The State 2005 YLR 16, the contraband material was not destroyed by the trial Court and on the contrary it was destroyed by a Magistrate who was not competent to do so in the light of provisions of section 516-A, Cr.P.C. In said case the Magistrate who had burnt the contraband material was not even produced before the trial Court. In the above mentioned judgment, while interpreting the provisions of section 516-A, Cr.P.C. It was held that only the trial Court has got the jurisdiction to destroy the remaining material of the contraband substance after obtaining and preparing such number of samples of the property as deemed fit. In the present case, after obtaining and preparing samples of chars, the predecessor of the learned trial Court, had destroyed the remaining chars by burning the same on 27-11-2000. A certificate in this regard was issued by the said Court and the same was placed on the record. According to the third proviso of section 516-A, Cr.P.C. The samples obtained through the process given in the second proviso of said section would be deemed to be whole of the property in an inquiry or proceedings in relation to such offences. So the Certificate issued by the learned Additional Sessions Judge was a sufficient proof of taking of the samples of chars. As far as the objection of the learned counsel for the appellant that before destroying the contraband material the appellant was not issued notice is concerned, the same does not hold water inasmuch as a perusal of section 516-A, Cr:P.C. Would show that there is no requirement of issuing of notice to the accused before destroying the properties mentioned in second proviso of said section. There is yet another ground for discarding the objection of the appellant that is, at no stage the appellant had claimed quantity of the recovered substance had wrongly been mentioned or that the recovered material was not chars or opium. Even during the cross-examination of the prosecution witnesses, it was not suggested to them that recovered material was not chars or opium or the total quantity was wrongly mentioned, so much so, while making statement under section 342, Cr.P.C. No such defence was advanced by the appellant.
Therefore, it cannot be held that the appellant was prejudiced in any manner by the action of destruction of the contraband material by the Court which was fully competent to do so. Hence the C appellant was liable to be convicted and sentenced on the basis of whole contraband substance which was recovered at his instance. There is yet another ground for spurning the technical objection of the appellant that is the concluding paragraph of the impugned judgment shows that only recovered chars minus the samples obtained by the Court which had issued the certificate was burnt and the opium recovered at the instance of the appellant was not destroyed.
In this case as mentioned above, 15 kilograms of opium was recovered from the appellant.
Possession of which also attracts the provisions of the proviso appended with subsection (c) of section 9 of the Control of Narcotic Substances Act, 1997. Therefore, the objection raised by the learned counsel for the appellant has got no force on this account too. Consequently, we have got no option but to hold that the prosecution has fully proved the commission of abominable offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997, by the appellant, hence the appeal fails and conviction and sentence awarded by the learned trial Court are maintained. However, we have observed that while awarding the sentence to the appellant, benefit of section 382-B, Cr.P.C. Has not been given to him, which is hereby granted to the appellant.
10. We have further observed that the appellant was tried in- two separate cases bearing F.I.Rs.
No.11/1998 and 12/1998 dated 12-8-1998 registered under section 9(c) of the Control of Narcotic Substances Act, 1997, at police station Anti-Narcotic Force, Bahawalpur. Second case was registered on the basis of disclosure of the appellant made during investigation of the first case.
Both the cases were simultaneously tried by the learned Sessions Judge, Bahawalpur, who had convicted the appellant on the same day i.e. 1-12-2001 in both the case. Both the said judgments were challenged by the appellant through Criminal Appeal No.1 of 2002 (appeal in hand and Criminal Appeal No.2 of 2002 which are being simultaneously decided by us today. Consequently, it is ordered that sentences awarded to the appellant in both the cases shall run concurrently under section 397, Cr. P.C.