' M. JAVED BUTTAR, J.---The appellant, Khawar Mehmood, was tried by Additional Sessions Judge, Lahore, in case F.I.R. No,196, dated 5-4-1998 registered at Police Station Baghbanpura, Lahore, for the office under Articles 3 and 4 Prohibition (Enforcement of Hadd) Order, 1979 and 6/9 of Control of Narcotic Substances Act, 1997, at the instance of complainant /P.W.4, Abdul Majeed, S-I./S.H.0, Police Station Baghbanpura, Lahore for the recovery of 40 kilograms of Charas, from his possession.
The learned trial Court, vide its judgment dated 8-10-2001 convicted the appellant under Section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced him to undergo imprisonment for life along with a fine of Rs,1,00,000 and in default of payment of fine, to further undergo six months'
S.I. The appellant was, however, extended the benefit of section 382-B, Cr.P.C. The appellant, through the present appeal, has assailed the legality and correctness of his conviction and sentence.
2. The prosecution case as set out in the complaint (Exh. P.A.) is that on 5-4-1998 the complainant, Abdul Majid, S-I./S.H.O. (P.W.4), along with S-I. Abdul Shakoor, Constables Muhammad Nawaz, Muhammad Ashraf, Akbar Ali, Zaka Ullah, Muhammad Ashiq and Daud Baig, was present at Chowk Daroghawala, when he received a spy information that one person `Butt' by name was present at Dhobi Ghat Bus Stop towards Naseerabad, who was having a silver Paiti {{URDU TEXT}} with him, which contained Charas, and was waiting for some conveyance and if raided immediately, he could be arrested red handed, accordingly the complainant along with police officials raided the place pointed out by the informer, found a person sitting on a silver Paiti and on seeing the police party, he tried to run away, but was apprehended by the police. On inquiry as to what was in the silver Paiti, he told that it contained his luggage and that the key had been misplaced, thereafter the handle of the Paiti was broken and 40 packets of Charas, each weighing one kilogram, were recovered from the same. On asking, the accused disclosed his name to be Khawar Mahmood and further disclosed that his friends namely Javeu Iqbal and Muhammad Nazim were also having huge quantity of Charas in their possession and he could lead to their arrest. The 1.0. Separated ten grams of Charas from each packet as samples for chemical analysis and the sample parcels and the parcel of the rest of the Charas were sealed and were taken into possession, vide recovery memo. (Exh.P.B.). The accused/appellant further disclosed that he and his family members were, since long, involved in the narcotic business. The complaint was prepared at the spot at 7-30 p.m.
And was sent to the police station through Constable Akbar Ali for the registration of formal F.I.R.
The I.O. Prepared site plan (Exh.P.C.) of the place of recovery, found the accused guilty and prepared report under section 173, Cr.P.C.
3. On 4-8-1999 the accused was formally charge-sheeted, to which he pleaded not guilty and claimed trial.
4. P.W.1, Muhammad Nasrullah, A.S.-I., on the basis of the complaint (Exh. P . A.), recorded formal F.I.R. , Exh.P.A./1. He was not cross-examined, although an opportunity was given.
5. P.W.2, Abdul Shakoor S-I., was member of the raiding party. He proved the recovery of Charas (P.1) and Jisti Paiti (P.2) from the possession of the accused/appellant. He fully supported the complaint and the prosecution case. He is also an attesting witness of recovery memo. Exh P.B .
6. P.W.6, Muhammad Nawaz Constable, was also member of the raiding party. He also corroborated P.W.2 on all material points. He further stated that on 15-4-1998 Ashiq Hussain Muharrir handed him over 40 sealed samples parcels for onward transmission to the office of Chemical Examiner, which he delivered in the said office, on the same day.
7. P.W.4, Abdul Majeed, S-I./ S.H.O., fully supported his complaint. He also narrated different steps taken by him during the investigation.
8. The prosecution also got examined C.W.1 Muhammad Saeed, H.C., who proved his report Exh.C.W.1/B, according to which P.W. Muhammad Ashiq, H.C. Had died in an incident.
9. The learned S.P.P tendered in evidence, report of Chemical Examiner (Exh. P.D.) and closed the prosecution case.
10. On 22-8-2000 learned counsel for the appellant moved an application for summoning Incharge, Malkhana along with Register No,19, which was allowed and Incharge Malkhana of the police station along with Register No,19 was summoned.
11. C .W.2 , Muhammad Ilyas, Constable, stated that he had brough' Register No,19 regarding the case property in case F.I.R. No, 196 of 1998, dated 5-4-1998. A photostat extract of the same was placed on the record as Exh.C.W.2/1.
12. The appellant, in his statement under section 342, Cr.P.C., answered question No,5, that why this case against him and why the P.Ws. Deposed against him, as follows:--- Answer.
' "As a matter of fact, Abdul Majid, S-I./S.H.O. Of P.S. Baghbanpura, Lahore and I.O. Of this case lives in my Mohallah at Singpura, Lahore and prior to alleged occurrence of this case, due to an altercation on playing of cricket, a grown up son of Abdul Majid, S-I./S.H.O. Entered into an altercation with me which ensued to a dispute and I had beaten him during open fight on account of which Abdul Majid, S-I./S.H.O. Became my sworn enemy and compelled me to seek pardon from his son in the open Mohallah otherwise he threatened at that time that I should be entangled in some narcotics case and he would be made a sign of disgrace and on my refusal I was taken forcibly to P.S. Baghbanpura on 5-4-1998 from my tailoring shop situated at Bhano Market, Anarkali, Lahore from where so many shop keepers appeared before 1.O. Of this case who first promised to release me and thereafter implicated me in such a nefarious narcotics case and 40 kilo Charas was planted on me which was not recovered from me and he went up to the extent even that he wrote in the F.I.R. On my hehalf that drug trafficking was the old profession of my family due to which this F.I.R. Has become inadmissible in the eye of law and cannot be relied upon. All the P.Ws.
Being police officials have deposed against me at the instance of S.-I. /S.H.O. Because despite of availability of neighbour on public witness was associated either in investigation recovery proceedings and this is all due to personal enmity that this false case has been fabricated against me."
' The appellant opted to appear as his own witness under section 340(2), Cr.P.C . And also produced evidence in defence.
13. D.W.1, Talib Hussain Bhatti, stated that accused was his tenant, Abdul Majeed S.H.O. Of P.S. Baghbanpura was also resident of same locality, 2/21/2 years ago there was a scuffle between the accused and son of Abdul Majeed over kite-flying and due to which, the said S.-I./S.H.O. Had threatened the accused that he would teach him a lesson for beating his son, that the accused Khawar Mahmood was a motor mechanic and thereafter he became a Tailor Master and used to work in Anarkali Bazar, Lahore, that the accused was of good character and never indulged in narcotic or any other nefarious activities, he along with other 20/25 Mohallandars had gone to P.S. Baghbanpura to see Abdul. Majeed S.-I. And had requested him to release the accused as he was innocent, the S.-I./S.H.O. Had promised to release the accused but he did not fulfil his promise and challaned the accused. He further deposed that after 12 days of this case, Abdul Majid, S.-I./ S.H.O.
Was arrested in a murder case and was released by paying a sum of Rs,3,00,000 and one car to complainant party.
14. D.W.2, Muhammad Akram, another resident of locality, in which accused used to reside, gave similar statement, as was given by D.W.1.
15. D.W.3, Qaiser Farooq, an embroider working at Anarkali, deposed that he knew the accused, who dealt is garments at Nila Gumbad, Anarkali, Lahore, he was arrested by the police from Nila Gumbad and had no concern with the drug paddlers.
16. The appellant, while appearing as his own witness under section 340(2), Cr.P.C., stated, on oath, asunder:--- ' "On 5-4-1998 I was caught hold of by Abdul Majeed S.-I./S.H.O. Of P.S. Baghbanpura, Lahore and I was taken to P.S. Baghbanpura, Lahore 2/3 days prior to that a quarrel had taken place between Mehmood son of Abdul Majeed S.-I./S.H.O. And myself due to cricket game, who used to live in the same Mohallah and the same street where I live, I had given beating to said Mehmood. The said S.H.O. Had demanded from me to seek pardon from his son in presence of the inhabitants of the Mohallah to which I did not agree as a result whereof I was taken to police station where I was forced to do so. During the days of occurrence, I was running a tailoring shop in Bano Market, Anarkali, Lahore. The said shop was a rented shdp and I produce copy of rent deed Mark-A. When I was taken to police station, shopkeepers of Bano Market had gone to the police station to inquire from the S.H.O. Concerned as to why I was arrested whereupon he had replied to them that he would let me soon. Similarly, my Mohallandars had also visited the police station to whom the S.H.O.
Had promised to let me off. The S.H.O . Above named had threatened me in the Mohallah that in case I did not seek pardon from his son he would involve me in some heinous offence. Nothing was recovered from me on 5-4-1998 and the Charas alleged to have been recovered from me was planted upon me by the said S.H.O. It is for this reason that nobody from amongst the public was associated in the proceedings at the time of recovery of alleged Charas and all the P. Ws. Are police officials. There is no criminal case of any sort against me."
17. We have heard the learned counsel for the appellant, the State and have also seen the record with their help.
18. It is submitted by the learned counsel for the appellant that the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt, that the statements of the P.Ws. Are full of contradictions and discrepancies viz. The receipt of spy information, the breaking of the lock or handle of the Jisti Paiti the mode of weighing the Charas, that the accused had successfully established that the I.O. Was inimical towards him and for this reason, the accused was falsely implicated in the present case, that physical features of the accused were not mentioned in the F.I.R., that no public witness was associated in the recovery proceedings and that the appellant is liable to be acquitted by extending him the benefit of doubt.
19. On the other hand, learned counsel for the State has argued that the discrepancies, pointed out by the learned counsel for the appellant, are minor in nature and not material, the prosecution has successfully established the guilt of the accused by producing eye-witnesses of the recovery of Charas from the accused, the story of quarrel between son of the I.O. And the appellant is merely a concoction, I.O. And the other recovery witnesses had no enmity with the accused/appellant to suggest his false implication, even otherwise it is not believable that for such a minor altercation, 1.O. Would involve the appellant in the present case by falsely planting such a huge quantity of Charas.
20. The recovery witnesses i.e, P.W. 2, P.W.3, and P.W.4 have fully established that the accused was apprehended, being in possession of Jisti Paiti, wherefrom 40 packets of Charas, each weighing one kilogram, were recovered. During lengthy. Cross- examination, they remained consistent in their depositions on all material points. The discrepancies, pointed out by the learned counsel for the appellant, are minor in nature and not material or fatal to the prosecution case. The statements of P.W.2 to P.W.4 are confidence-inspiring. In our view, the recovery of Charas weighing 40 kilograms from the appellant stands established beyond reasonable doubt. The defence version that the appellant was falsely implicated in the present case due to the enmity of the 1.0.
With the appellant because of the quarrel having taken place between the appellant and the son of the I.O., is merely a concoction. It does not inspire confidence and is not believable. The appellant stated that the quarrel had taken place over a cricket match, whereas D. W.1 has stated that scuffle took place over kite-flying. Such a huge quantity of Charas could not have been planted for such altercation. Furthermore, no enmity has been suggested with P.W.2 and P.W.3, who are witnesses of recovery. They fully supported the complaint and the prosecution case. The non- association of any public witness, in the recovery proceedings, has been explained by the 1.0. /P.W.4. He has stated that he tried to join the members of public in the recovery proceedings but none associated. Even otherwise, the provisions of section 103, Cr.P.C. Are not applicable to the narcotic cases as they stand specifically excluded under section 25 of Control of Narcotic Substances Act, 1997.
21. In view of the above mentioned, we see no merit in this appeal, which is accordingly dismissed.