Altaf Ibrahim Qureshi, J.--Nisar Hussain was tried by the learned Additional Sessions Judge, Hasilpur, District Bahawalpur, in case F.I.R. No, 387, dated 27.10.2008, 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, 3,00,000/- in default thereof to further undergo rigorous imprisonment for three years. This was vide judgment dated 04.05.2010.
2. Through this appeal, the appellant has challenged his conviction & sentence.
3. Pervez Iqbal Inspector/SHO is complainant of the aforesaid case. He stated in the FIR that on 27.10.2008, he along with the police officials, was present within the limits of Chak No, 19/FW near Degree College, Hasilpur, on patrolling when a spy informed him that Nisar Hussain, who deals in the business of Chars and Opium, had unloaded a huge quantity of Chars and Opium in a room of deserted Railway Station Qaimpur and was selling the same to his pet customers and if raided, he could be caught red-handed. The complainant along with police officials, who were present with him there, accompanied Rana Iftikhar, Sub-Inspector, on telephonic call. After constituting a raiding party, on the pointation of the informer, Nisar Hussain-appellant was apprehended. The raiding party forced their entry into the room of Railway Station, where Charas containing five bags (detailed in FIR) was lying, which was taken into possession. Charas when weighed was found to be 130.500 kilograms whereas opium was 14.800 kilograms. Ten grams of recovered contraband was separated from each packet. The samples and the remaining quantity of Chars were sealed into parcels separately and the accused was booked in this case. A weighing scale and two weights of 2/2 kilograms, one weight of 1/1 k.g., one weight of 200 grams, one weight of 100 grams and another of 50 grams were also recovered which were also taken into possession.
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.
6. Complainant Pervez Iqbal Inspector/SHO appeared as PW-6 and reiterated the facts leading to recovery of Chars as stated in the FIR. According to him, he took into possession the recovered contraband vide recovery memo Exh.PA which was attested by Muhammad Arshad ASI (PW-1) and Nazeer Ahmad ASI (PW-2). A weighing scale P-6 and two weights of 2/2 kilograms, one weight of 1/1 k.g., one weight of 200 grams, one weight of 100 grams and another of 50 grams P-7 to P-12 along with one Torch P-13, were also recovered which were also taken into possession. He further stated that he prepared 105 sealed parcels of Charas and 12 parcels of Opium P-14 along with amount of Wattack Rs,1500/- P-18 vide Exh.PA. He drafted the written complaint Exh.PE and sent the same to the Police Station for registration of case through Muhammad Ayyub 1151/HC. He handed over the case as well as accused-Nisar Hussain to the Investigating Officer namely Iftikhar Ahmad, Sub- Inspector, who appeared as PW-5 and deposed that on 27.10.2008, he reached at the spot on the call of PW-6 Pervez Iqbal SHO. He reiterated the story narrated by PW-6. The case property was deposited with the Moharar-Muhammad Shabir 1877/HC PW-4, who handed over the same i,e, 105 sealed parcels containing Charas and 12 sealed parcels containing opium, to Zulfigar 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. Zulfiqar Ali 925-C appeared as PW-3 and deposed that he deposited the aforesaid sealed parcels 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.PF and Exh.PG are the reports of the Chemical Examiner according to which the sealed parcels received in the said office through Zulfigar Ali 925/C (PW-3) were found to contain Chars and Opium, respectively.
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 whereon the saying of Muhammad Arshad Waraich Inspector got registered fabricated and false case 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 me due to subordinate of Paryez 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 this FIR was registered on 27.10.2008 and the case of the prosecution is that the appellant was apprehended at the spot but in the application, "which was filed by the prosecution for second physical remand of the appellant, his date of arrest is mentioned as 28.10.2008, which falsified the whole prosecution story.
The learned counsel further contends that the appellant has falsely been implicated at the behest of Muhammad Arshad Waraich Inspector, as the appellant has enmity of murder, with the said Inspector, because his nephew was murdered and the appellant was accused in that case. Also contends that the contrabands were neither recovered from the possession of the appellant nor on his pointation, as is clear from the recovery memo Exh.PA. It is also contended that the story of the prosecution that the appellant was selling the narcotics at an abandoned Railway Station at 11.00 p.m. is highly improbable; that the prosecutor has produced two witnesses of recovery but both of them in their statements made before the learned trial Court as PW-1 & PW-2, have not stated anything regarding the quantity of narcotics allegedly recovered and even the Investigating Officer namely Iftikhar Ahmad while appearing as PW-5 has not said anything regarding the quantity; similarly, no witness has stated anything that how many packets of Chars and Opium were recovered. It is also contended that it was the case of the prosecution that each packet contained one slab of Charas whereas when the packets were de-sealed before the learned trial Court, each packet contained five slabs and if the prosecution story is accepted as correct then no sample was taken from the aforesaid packets; that there are contradictions in the statements of the prosecution witnesses, as PW-2 has stated that the complaint Exh.PE was drafted by Iftikhar Ahmad SI (PW-5) whereas said PW-5 has stated that the SHO firstly drafted the complaint and then Charas was taken into possession; that the samples were sent to the concerned Laboratory after three months of its alleged recovery; that the appellant is not a previous record-holder; that the appellant had no concern with the place of recovery; that the local police had no jurisdiction in the matter, as the place of recovery shown by the prosecution is a Railway Station and it was the Railway police who could investigate the matter. It is lastly contended that all these circumstances create a serious doubt in the prosecution story and the appellant is entitled to have the benefit of same not as a matter of grace but as a matter of right.
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.The first application for physical remand was submitted on 28.10.2008 and the same was granted on the same date by the learned Magistrate. The case was registered on the night intervening 27/28.10.2008 and the appellant was produced on 28.10.2008; meaning thereby that he was actually arrested on 27.10.2008. Even in the police diary, his date of arrest is 27.10.2008; therefore, there is no force in the contention raised by the learned counsel for the appellant that he was arrested on 28.10.2008.
14.We have found that recovery of quantity mentioned 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 contraband i,e, Chars & Opium was recovered from the possession 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, 09 supra, which is found to have no force as against the prosecution story.
15.As is clear from the prosecution case, the place of recovery is an isolated place i.e, deserted Railway Station; 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.
16. Furthermore, the reports of the Chemical Examiner Exh.PF & Exh.PG qua the recovered narcotics are in positive, which fully connects the appellant with the commission of the offence.
17. 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.