Altaf Ibrahim Qureshi, J.--Nisar Hussain was tried by the learned Additional Sessions Judge, Hasilpur, District Bahawalpur, in case F.I.R. No, 391, dated 29.10.2008, registered under Section 9(c), Control of Narcotic Substances Act, 1997, at Police Station Qaimpur, District Bahawalpur. The appellant was found guilty, convicted accordingly and sentenced to imprisonment for life and fine amounting to Rs, 1,00,000/- in default thereof to further undergo rigorous imprisonment for one years. This was vide judgment dated 04.05.2010.
2. Through this appeal, the appellant has challenged his conviction & sentence.
3. Iftikhar Ahmad Sub-Inspector is complainant of the aforesaid case. He stated in the FIR that on 29.10.2008, during the course of investigation of case FIR No, 387/08, registered u/S. 9(c), CNSA, Nisar Hussain made disclosure in presence of the witnesses namely Muhammad Arshad ASI & Nazir Ahmad ASI that he had hidden a bag of Chars in sand-dune and he could get Chars concealed by him recovered. The complainant along with police officials who were present with him there, accompanied Nisar Hussain under handcuffs to the aforesaid place who led to the recovery of 10.200 kilograms of Chars, which was taken into possession. Ten grams from recovered Chars was separated. The sample and the remaining quantity of Chars were sealed into parcels separately and the accused was booked in this case.
4. At the inception of the trial, appellant was formally charged under Section 9(c), CNSA 1997 to which he pleaded not guilty and claimed trial.
5. The prosecution examined five witnesses to prove the charge.
6. Complainant Iftikhar Ahmad Sub-Inspector appeared as PW-5 and reiterated the facts leading to recovery of Chars as stated in the FIR. According to him, he took into possession the recovered Charas P-4 vide recovery memo Exh.PA which was attested by Muhammad Arshad ASI (PW-1) and Nazeer Ahmad ASI (PW-2). He stated that hedrafted a complaint Exh.PC on the basis of which FIR Exh.P-C/1 was got registered. The case property was deposited with the MohararMuhammad Shabir 1877/HC PW-4, who handed over the same to Zulfiqar Ali 925-C for onward transmission to the office of Chemical Examiner, Multan. He stated that no body tampered with the said parcels during his custody. Zulfigar Ali 925-C appeared as PW-3 and deposed that he deposited the aforesaid sealed parcel containing 10 grams of Chars in the office of the Chemical Examiner, Multan and during his custody, no one tampered with the same. Muhammad Arshad ASI and Nazir Ahmad ASI. PW-1 & PW-2, respectively, are the witnesses of recovery who made statements consistent to the story mentioned in the FIR.
7. Exh.PD is the report of the Chemical Examiner according to which the sealed parcel received in the said office through Zulfigar Ali 925/C (PW-3) was found to contain Chars.
8. On conclusion of the prosecution evidence, statement of the accused was recorded under Section 342, Cr.P.C. While replying to the question as to why this case against him and why the P.
Ws. made statements against him, the appellant replied:-- "I am involved in this case due to murder previous enmity between me and Muhammad Arshad Warraich Inspector Family. Muhammad Arshad Waraich Inspector is close friend of Parvez Iqbal Bajwa Inspector who were posted at P.S. Qaimpur at the time of this case. Parvez Iqbal Bajwa Inspector with other police officials apprehended me from Bahawalpur on saying of Muhammad Arshad Waraich Inspector when I was coming from Rahimyarkhan after funeral prayer of Muhammad Zahid Khan, Advocate. At the time of arrest from Bahawalpur nothing was recovered from me. After arrest from Bahawalpur Parvez Iqbal Bajwa I/SHO brought me at P.S. Qaimpur where on the saying of Muhammad Arshad Waraich Inspector got registered fabricated and false cases FIR No, 387/2008 u/S. 9-C CNSA and 391/2008 u/S. 9-C CNSA against me and the alleged recovered narcotics of both the cases was provided by Muhammad Arshad Waraich Inspector due to previous enmity. After registration of both the cases Muhammad Arshad Waraich Inspector collected the narcotics, due to this reason send the sample of narcotics to the office of Chemical Examiner Multan with delay of 89 days. I and Muhammad Arshad Waraich Inspector are residing at Rahimyarkhan, PWs gave evidence against due to subordinate of Parvez Iqbal Bajwa I/SHO and due to Government servants."
9. The appellant did not produce any defence evidence nor did he opt to get his statement recorded on oath as envisaged under Section 340(2), Cr.P.C.
10.Learned counsel for the appellant in support of this appeal contends that recovery in this case had been planted by the police when the appellant was already in their custody in case FIR No, 387/08 and the appellant has no concern with the place of recovery. Further contends that it is the case of the prosecution that only ten grams of charas was separated from the, recovered Chars, which was sent to the office of Chemical Examiner whereas when the parcel was de-sealed before the learned trial Court it contained two packets, which suggests that the sample was taken only from one packet and not from the whole lot, therefore, maximum recovery, which the prosecution can said to have proved successfully, is ten grams only. Also contends that even PW2 Nazir Ahmad, who is the recovery witness, has stated in his cross-examination that he did not see the packet of Chars and volunteered that the same was in Gatoo. This being so, there are material discrepancies in the statements of the prosecution. It is lastly contended that the conviction and sentence, recorded by the learned trial Court were illegal and liable to be set-aside.
11. The learned Deputy Prosecutor General on the other hand opposes this appeal on the grounds that there is absolutely no enmity between the prosecution witnesses and the appellant and the minor discrepancies pointed-out by the learned counsel for the appellant in the statements of the prosecution witnesses are not material if the huge quantity of narcotics recovered from the possession of the appellant is taken into consideration; that the appellant has stated that he has been implicated at the behest of Muhammad Arshad Waraich, Inspector, but he has not produced any evidence on this aspect and; that the witnesses are consistent in their statements and the prosecution has proved its case beyond any shadow of doubt.
12.We have considered the contentions of the parties in the light of record.
13.We have found that recovery is supported by two witnesses namely Muhammad Arshad ASI (PW-1) & Nazir Ahmad ASI (PW-2), who had no animus against the appellant. The defence failed even to suggest any mala fide to any one of the prosecution witnesses. During cross-examination of the said witnesses, the appellant failed to extract any contradiction which may impeach the credibility of their testimony. Minor discrepancies in the statements of the prosecution witnesses are natural causing no serious dent in the prosecution case. Huge quantity of Chars was recovered on the pointation of the appellant. The chance of planting this quantity falsely against a person with whom none of the P.Ws. had any malice, is ruled-out. The defence plea has been reproduced in Para No, 9 supra, which is found to have no force as against the prosecution story.
14.As is clear from the prosecution case, the recovery of Chars was effected from a sand-dune within the limit of Chak No, 19/FW; therefore, there arise no question of any independent witness, as in such circumstances when even no suggestion was put to the P.Ws. regarding inhabitants of the vicinity, the police witnesses are as good as compared to private witnesses.
15. Furthermore, the report of the Chemical Examiner Exh.PD qua the recovered narcotics is in positive, which fully connects the appellant with the commission of the offence.
16. For what has been discussed above, we hold that the prosecution successfully proved the charge against the appellant without any shadow of doubt. This appeal has no force which is hereby, dismissed. However, the benefit under Section 382-B, Cr.P.C. is extended to the appellant.
17.We have noted that the present appeal is an offshoot of connected Criminal Appeal No, 222/2010/BWP, which vide our separate judgment of even date has also been dismissed. In the said appeal, the conviction and sentence of the present appellant awarded vide Judgment dated 04.05.2010 by the same learned Additional Sessions Judge, Hasilpur, has been assailed, which has arisen from case FIR No, 387/08 and during the interrogation of said FIR, the present FIR was lodged, which after trial was resulted in conviction giving rise to filing of the instant appeal. Therefore, in the aforesaid two different cases, the judgments were pronounced on 04.05.2010 and the sentences pertain to one and the same person i,e, the appellant. Accused had been convicted in two different cases on the same date by the same learned Additional Sessions Judge, but the learned trial Court did not make any order as to the sentences being run concurrently. On this point, the relevant lines from the judgment reported as Nadeem vs. The State (2010 P.Cr.LJ. 1681), are reproduced hereunder for facility of reference:-- "if, for any reason or due to some inadvertent omission the order within the meaning of 5.397, Cr.P.C. was not passed by the Trial Court, the same task could be undertaken by the High Court while exercising its powers under S. 561-A, Cr.P.C.--Such exercise of power by High Court would not amount to review or modify the judgment which would remain intact regarding the conviction and sentence as the matter of sentence to run was ancillary to the question of punishment--All the sentences awarded to the petitioner were ordered to run concurrently with direction to the Superintendent Jail for doing the needful."
Therefore, in the interest of justice, the sentences awarded in the aforesaid two cases are ordered to run concurrently.