RIAZAT ALI SAHAR, J.---Record reflects that appellant was admitted to bail by this court vide order dated 4-11-2009 by suspending the operation of impugned judgment and since then he was avoiding to proceed with the matter. Today, appellant is present in person and submitted that he is not in a position to engage counsel as he has withdrawn the power, given to counsel and intends to proceed with the matter in person.
2. Appellant Ashique Hussain was tried by learned Sessions/ Special Judge (CNS), Ghotki in Special Case No. 12 of 2007, under section 9(b) of CNS Act, 1997 and after full-dressed trial, vide judgment dated 17-10-2009, was convicted under section 9(b) of C.N.S. Act, 1997 and sentenced to suffer R.I.
For 8 months and fine of Rs.2000 and in case of default to suffer R.I. For 1 month. Benefit of section 382-B, Cr.P.C. Was extended to him. The appeal has been preferred against the aforesaid judgment.
3. Brief facts of the prosecution case, as disclosed in the F.I.R., are that on 30-4-2007 at about 6-00 P.M. At Khanpur Mahar Bus stop, adjacent to railway crossing Ghotki, present appellant was apprehended by complainant Excise Inspector Hussain Bux Larik and found in possession of 100 grams of Opium and 200 grams of Charas, such recovery was made under the Mashirnama prepared at spot.
4. A charge against appellant was framed under section 9(b) of Control of Narcotic Substances Act, 1997, to which he pleaded 'not guilty' and claimed trial.
5. In order to substantiate the charge, prosecution examined witnesses, namely, complainant Excise Inspector Hussain Bux Larik at Exh. 8, he produced copy of entry, memo of arrest and recovery, F.I.R. And report of chemical examiner at Exh.8/A to 8/D respectively and P.W.2 E.C.
Shahnawaz, mashir of arrest and recovery at Exh.9. Consequently, side of prosecution was closed vide statement at Exh.
10.
6. Statement of appellant was recorded under section 342, Cr.P.C. At Ex.9, in which he claimed to be innocent and denied the prosecution allegations.
7. On conclusion of prosecution evidence, learned trial court after assessm ent of evidence, convicted and sentenced the appellant as stated above.
8. We have carefully heard the appellant in person and learned A.P.-G. For the State and scanned the entire evidence.
9. Appellant in person submitted that he is innocent and has falsely been implicated by complainant party. He further contended that he was arrested by Excise Police Ghotki from Ghotki bus stand, when he came down from bus for purchasing household articles. He also submitted that Excise police snatched cash amount of Rs.46,000 from him. He further submitted that prosecution story is unbelievable. It is also submitted that place of recovery is thickly populated area, but no private person of the vicinity was made as mashir of recovery and evidence of police officials without independent corroboration was unsafe for the purpose of conviction. Lastly it is submitted that defence plea was not considered by the trial court; case is highly doubtful and benefit of doubt may be extended to him.
10. Syed Sardar Ali Shah, A.P.-G. Argued that the prosecution witnesses have fully supported the case of prosecution. No major contradiction has been brought on record. Evidence of the police officials is confidence inspiring. Prosecution witnesses had no enmity with the appellant to foist Opium and Charas upon him. He also argued that non-compliance of mandatory provision of section 103, Cr.P.C. Would not be fatal to the prosecution case as in the narcotics cases, section 25 of the C.N.S. Act, 1997 clearly excludes application of section 103, Cr.P.C. It was argued that evidence of police officials is as good as that of private persons. It is argued that defence plea was afterthought and it was considered by trial court. In support of his contentions, reliance has been placed on the cases of Muhammad Khan v. The State (2008 SCM R 1616) and Kashif Amir v. The State (PLD 2010 SC 1052).
11. Seemingly, complainant Excise Inspector Hussain Bux Larik in his evidence stated that on 30-4- 2007, he was posted as Excise Inspector at Excise Police Station Ghotki. On that day, he along with his subordinate staff while on patrol duty found one person in suspicious condition, who was going towards Ghotki town. They got stopped said person and enquired his name and parentage, who on enquiry disclosed his name as Ashique Hussain. Thereafter, in presence of E.C. Shah Nawaz and E.C.
Ghulam Mustafa, being mashirs the complainant took personal search of said person and during search, he secured one plastic shopper from right side pocket of his "patloon", which he opened and found three pieces of opium and one piece of charas respectively in two plastic shoppers.
P.W.2 Shah Nawaz has also deposed in the same line as deposed by complainant Excise Inspector Hussain Bux Larik. Evidence of both the P.Ws. Is consistent on all the material particulars such as date, time, place and manner of recovery of contraband. No material contradiction has been noticed in the evidence of P.Ws. However, some minor contradictions have been found which could not be sufficient to cut the roots of the prosecution case or such discrepancies are bound to occur due to lapse of considerable time. Positive report of chemical examiner has been produced in evidence. It is also settled law that the evidence of police officials is as good as of any other public witness in absence of any malice or mala fide of the police officials. In this case prosecution witnesses had no enmity whatsoever with the appellant to foist such Opium and Charas upon him.
Once prosecution has proved its case then under section 29 of C.N.S.A., burden shifts upon the accused to prove contrary to the plea of the prosecution. Prosecution has, thus, A discharged its initial onus while proving that the substance recovered from the appellant to be Opium and Charas. It was proved by cogent evidence that appellant was found in possession of narcotic substance.
12. Under section 29(d) of C.N.S. Act, 1997 presumption would be that a person who was found in possession of narcotics had committed offence unless otherwise proved. In the instant case, there is no material contradiction in the evidence of prosecution witnesses. No such infirmity, illegality, misreading or non-reading is found in the impugned judgment. The date, time, place and manners of the offence were fully corroborated with ocular testimony as well as circumstantial evidence.
Appellant has failed to discharge burden to show that he was not in possession of narcotics.
Opium and Charas were sent to chemical examiner, who reported the same to be positive.
Defence plea appears to be an afterthought. Trial court on the basis of huge evidence has as such rightly convicted the appellant in this case.
13. For the above stated detailed reasons, the instant Criminal Appeal was found without merit and was dismissed by our short order dated 5-12-2013 by holding that the prosecution has proved its case against the appellant beyond any shadow of doubt as the trial court has appreciated the evidence in accordance with the settled principle of law and had already taken lenient view, is based upon sound reasons and thus the impugned judgment dated 17-10-2009 was maintained.
The appellant was present on bail. His bail bonds stood cancelled and surety discharged and he was taken into custody and remanded to jail to serve out remaining portion of sentence.