' IJAZ-UL-HASSAN KHAN, J.--- Muhammad Khan, petitioner, was tried by learned Additional Sessions Judge, Mianwali on the charge of having been found in possession of `Charas' weighing 1250 grams. At the conclusion of trial, vide judgment dated 2-11-2006, petitioner found guilty of the said charge was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to suffer 7 years' R.I. With fine of Rs,20,000 or in default whereof to undergo six months' S.I.
Benefit of section 382-B, Cr. P.C., was extended to the petitioner.
2. The petitioner, feeling aggrieved, filed Criminal Appeal No,1819 of 2006 in the Lahore High Court, Lahore, to challenge his conviction and sentence, which was dismissed vide judgment dated 6-5- 2008. The petitioner, has preferred instant Criminal Petition before this Court, seeking leave to appeal against the aforesaid judgment.
3. Pursuant to spy information, stated to have been received by complainant Badar Munir, S.H.O.
Police Station Pai Khel, Mianwali on 19-7-2006 that petitioner deals in narcotic business at his hotel, a police party under the supervision of complainant was constituted. The party conducted raid at the hotel of the petitioner. On seeing the police party, the petitioner tried to slip away but he was apprehended and on his personal search, `Charas' was recovered from his possession. The `Charas' was weighed and found 1250 grams. A meagre quantity i.e, 10 grams `Charas', was separated as sample out of the seized property and sent to the office of Chemical Examiner for analysis. The remaining was sealed into a parcel. The petitioner was arrested and a case was registered against him under section 9(c) of the Control of Narcotic Substances Act, 1997 vide F.I.R No,81 dated 19-7-2006 at Police Station Pai Khel, Mianwali.
4. The prosecution at the trial produced 5 witnesses in all. At the conclusion of the prosecution evidence, the statement of the accused was recorded under section 342, Cr.P.C., in which, he denied having been found in possession of the contraband `Charas' and claimed to have been falsely implicated at the instance of Asmat Ullah Khan, Nazim, Union Council Pai Khel. In defence he produced Rab Nawaz Khan as D.W.1.
5. We have heard at length Ch. Irshad Ullah Chattha Advocate, for the petitioner and Ms. Yasmin Saigol, learned Deputy Prosecutor General for the State, in the light of the material on record.
6. Learned counsel for the petitioner contended that except the bare allegations in the F.I.R, there is nothing incriminating on the file which could connect the petitioner with the commission of crime; that the raiding party despite having prior information did not bother to obtain search warrant from the competent Court and conducted the raid at the hotel of the petitioner without showing circumstances to justify such raid without a search warrant and that only 10 grams `Charas' has been separated out of the seized property for chemical analysis and entire bulk has not been sent to chemical examiner and as such petitioner can be held liable to that extent only. Apart from arguing that there is clear violation of section 165, Cr. P.C. Read with section 103 thereof, as no independent witness has been associated with the recovery proceedings by the police, he stated that the witnesses of recovery are police officials whose testimony can neither be accepted nor termed as credible. The learned counsel also reiterated that the petitioner was arrested from the wood stall of Rab Nawaz Khan (D.W.) and not from his hotel and the plea raised by the petitioner has not been considered at all, resulting in complete failure of justice. Concluding the arguments, learned counsel submitted that sentence awarded to the petitioner is on higher side and may be reduced appropriately.
7. Learned Deputy Prosecutor-General, on the other hand, supported the impugned judgment and prayed for its sustenance maintaining that the petitioner has failed to show any or motive on the part of the police to falsely implicate him in the case and that keeping in view huge quantity of contraband `Charas' from the possession of the petitioner, it cannot be said that the same was planted by the police. She lastly submitted that the prosecution has proved the case against the petitioner beyond any reasonable doubt and therefore the sentence of conviction of the petitioner does not call for any interference by this Court.
8. The prosecution in order to prove the factum of apprehension of the petitioner and recovery of `Charas' from his possession, has produced two witnesses namely Inspector Badar Munir (P.W.4) and Constable Muhammad Iqbal (P.W.5). Both these witnesses are independent and disinterested witnesses and have unanimously supported the prosecution version regarding the raid conducted at the hotel of petitioner and recovery of `Charas' from his possession at the relevant time. They are as good and respectable witnesses as other public witnesses and their statements cannot be discarded merely for the reason that they were the police employees. Reference in this context can be made to the cases of Muhammad Azam v. The State PLD 1996 SC 67, Naseer Ahmad v. The State, 2004 SCM R 1361 and Aala Muhammad and another v. The State 2008 SCM R 649.
9. The other objection of learned counsel for the petitioner regarding non compliance of the provision of section 103, Cr. P.C. Is also misconceived as much as by virtue of section 25 of the Control of Narcotic Substances Act, 1997 non-citing of a public witness is not fatal to the prosecution case as section 103, Cr.P.C., has been specifically excluded from its application in cases of narcotics. In this regard, reference can be placed on the case of Zulfiqar Ahmad v. The State, 2006 SCM R 800.
10. Learned counsel for the petitioner further contended that only 10 grams `Charas' out of the seized property, has been separated and sent to the chemical examiner for analysis and petitioner is liable to that extent only. The submission of the learned counsel does not carry weight. It is not the requirement of law that entire contraband should be sent for analysis. During the trial, the petitioner did not move any application to learned trial Court for getting the remaining quantity of narcotic for examination. Even the recovery witnesses were not suggested that the remaining bulk was not the `Charas'.
11. Recovery of 1250 grams `Charas' from the possession of petitioner is fully proved from the evidence of Inspector Badar Munir (P.W.4) and Constable Muhammad Iqbal (P.W.5). The report of Chemical Examiner (Exh.P.D.) further lends corroboration to the evidence of these P.Ws. That the material recovered from the petitioner was `Charas'.
12. Adverting to the petitioner's plea that he has been falsely implicated in the present case at the instance of Asmat Ullah Khan, Nazim, Union Council, Pai Khel, we feel that plea is an afterthought and has not been substantiated by the evidence. The mere E assertion of the petitioner that he has been falsely roped in the case, without a positive attempt on his part to substantiate the same, is of no consequence.
13. In view of the above, we are of the opinion, that no exception can be taken to the finding of guilt recorded against the petitioner by the learned trial Judge and maintained by the learned High Court in appeal.
15.(sic) Adverting to the prayer of learned counsel for reduction in the quantum of sentence, we find that petitioner is in jail ever since his arrest on 19-7-2006 and has undergone a major portion of his substantive sentence. Resultantly, having regard to facts and circumstances of the case, while converting this petition into appeal, the sentence of the petitioner is reduced from 7 years' R.I.
To 4 years' R.I., to meet the ends of justice. The sentence of fine or in default whereof, shall, however, remain intact. With the above modification, the appeal stands dismissed.
Sentence reduced