Aalia Neelum, J.- Muhammad Yousaf son of Muhammad Younas, appellant was involved in case F.I.R. No. 736-2009 dated 07.11.2009, offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997, registered at Police Station, Civil Lines, Gujranwala and was tried by the learned Additional Sessions Judge, Gujranwala. The learned trial court seized with the matter in terms of judgment dated 13.04.2010 convicted the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo four years R.I. With the direction to pay Rs.30,000/ as fine and in case of default thereof, further undergo Simple Imprisonment for seven days. The benefit of Section 382-B, Cr.P.C was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Yousaf-appellant assailed his conviction through filing of the instant appeal.
3. The prosecution story as alleged in the F.I.R (Exh.PA) lodged on the complaint (Ex.PC) of Mushtaq Ahmad, S.I. (PW-4) is that on 07.11.2009, he (PW-4) along with Shamim Ahmad, A.S.I (PW-5), Muhammad Shahbaz 4230/C and Mubashar Hussain 4247/C was present at Shamsi Chowk on patrolling duty and laid a barricade in order to catch the drug peddlers. In the meanwhile, he (PW- 4) received a secret information that a person was coming from Lohianwla to Shamsi Chowk while carrying a huge quantity of charas and could be apprehended, whereupon police party became alert and on the pointation of informer, the said person was caught, who disclosed his name as Muhammad Yousaf son of Muhammad Younas, Caste Faqeer, resident of Othian, Tehsil Daska, District Sialkot. On personal search, charas weighing 4000 grams (P-1) was recovered from a black plastic bag, carrying in the right hand of the accused, which was taken into possession vide recovery memo (Ex.PB). Out of the recovered substance, a sample of 10-grams charas was separated for chemical analysis after embossing M.A seal. On asking, the accused told that he was going to supply the recovered substance to Sabir Butt son of unknown, Caste Kashmiri, resident of Fattomand. Thereafter the complainant (PW-4) drafted complaint (Exh.PC) and sent the same to the Police Station through Mubashar Hussain 4247/C for registration of formal F.I.R.
4. On receiving of complaint (Ex.PA/1), Muhammad Iqbal, S.I. (PW-1) chalked out formal F.I.R. (Ex.PA).
After receipt of copy of F.I.R (Ex.PA), Ehsan ullah, S.I. (PW-6), Investigating Officer proceeded towards the place of occurrence. The complainant (PW-4) handed over the case property (P-1) as well as physical custody of accused to him (PW-6). Thereafter the Investigating Officer visited the place of recovery and prepared un-scaled site plan (Ex.PD) and recorded the statements of prosecution witnesses under Section 161 of Cr.P.C. On completion of proceedings, the Investigating Officer reached at police station and handed over the case property to the Moharrar of police station for safe custody and put the accused behind the bars.
5. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C., while placing his name in Column No.III of the Challan and sent the same to the court of competent jurisdiction.
6. The learned trial court formally charge sheeted the appellant on 09.02.2010, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Mushtaq Ahmad, S.I. (PW-4) is complainant of the case, Ehsan ullah, S.I. (PW6) is Investigating Officer, Muhammad Pervaiz, 2859/HC (PW-2) chalked out F.I.R, Sadaqat Ali 2074/HC (PW-3) deposed that on 07.11.2009, Ehsan ullah, S.I. (PW-6) Investigating Officer handed over two sealed parcels said to contain charas which he (PW-3) deposited in the Malkhana for safe custody.
He (PW-3) further deposed that on 11.11.2009, one sample as sealed parcel said to contain charas was sent to the office of Chemical Examiner by him (PW-3) through Muhammad Ayub 1723/C (PW- 1) whereas Muhammad Ayub 1723/C (PW-1) deposed that on 11.11.2009, Moharrar of the police station handed over to him (PW-1) one sample of sealed parcel said to contain charas for its onward transmission to the office of Chemical Examiner, Lahore which he (PW-1) deposited the same in the above said office same day, in intact position.
7. On 13.03.2010, the learned Deputy District Public Prosecutor gave up PW-Shahbaz 4230/C being un-necessary and closed the prosecution evidence after tendering the report of Chemical Examiner as (Ex.PE).
8. The appellant was also examined under Section 342, Cr.P.C. Wherein he opted to lead defence evidence but refused to appear as his own witness in terms of Section 340(2) Cr.P.C. In disproof of allegations levelled against him in the prosecution evidence and while replying to a question that why this case was against him and why the PWs have deposed against him, the appellant made the following deposition:- "Actually I was arrested in case FIR. No.71/2007 under Section 353, 382, 224, 225, 186, 506, 147, 149 PPC. On the day of alleged occurrence, I went to court to pursue the above said case and some altercation took place between me and the police who after in connivance with police of civil line, Gujranwala falsely involved me in this case. The recovery was planted against me. I am innocent."
9. After hearing the arguments advanced by the learned counsel appearing on both sides, the learned trial court, while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted into conviction of the appellant in the above stated terms.
10. The learned counsel for the appellant had argued that it was a case of false implication of the accused; no public witness had joined at the place from where the accused was allegedly apprehended; that appellant is first offender, therefore, he deserves some leniency in awarding the sentence; that recovery is shrouded with suspicion; that there is mis-reading and non-reading of evidence as well as documents exhibited during the evidence. Lastly, prayed for kind indulgence of this Court in the circumstances.
11. On the other hand, learned Deputy District Public Prosecutor has opposed the contention raised on behalf of the appellant and stated that all the material witnesses had entered into the witness box and they had fully supported the case and corroborated one another on each and every aspect of the case. The Chemical Examiner report clearly proves that the recovered substance was charas. Efforts were made to join public persons as witnesses but none agreed. Learned Law Officer lastly argued that the learned trial court had rightly convicted the appellant.
12. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Deputy District Public Prosecutor and have minutely perused the record available on the file.
13. In the instant case, Mushtaq Ahmad (PW-4) had received the information, which was very specific qua the appellant that he had huge quantity of the charas. Upon which, the complainant (PW-4) made the blockade alert. The accused was apprehended at the instance of the informer.
During his physical search from the right hand of accused, polythene bag having black colour containing charas was recovered weighing four kilograms. The complainant (PW-4) had separated sample, weighing 10-grams, which was taken into possession vide recovery memo (Ex.PB). The complainant (PW-4) and Shamim Ahmad, A.S.I. (PW-5) have fully supported the prosecution version on account of recovery and nevertheless they were subjected to lengthy cross-examination, however, the defence has failed to bring on record an iota of evidence favouring the defence version. Mushtaq Ahmad, S.I. (PW-4), the complainant, has stated that he drafted a complaint (Ex.PC) and sent from the spot through Mubashar Hussain, Constable. On the basis of which, Muhammad Pervez, HC (PW-2) recorded F.I.R (Ex.PA). Ehsan ullah, S.I. (PW-6) who had come on the spot on entrustment of investigation has stated that Mushtaq Ahmad, S.I. (PW-4) the complainant had handed over to him sealed case property and the accused. Sadaqat Ali, H.C (PW-3) also proved this fact that Ehsan ullah, S.I. /Investigating Officer handed over to him two sealed parcels said to contain charas which he kept in the Malkhana for safe custody. Sadaqat Ali, HC (PW-3) has stated that on 11.11.2009 the sample was sent to the office of Chemical Examiner in intact condition through Muhammad Ayub, Constable (PW-1). Muhammad Ayub, Constable (PW-1) also proved the fact that he deposited one sealed sample containing charas in the office of Chemical Examiner, Lahore. The report of the Chemical Examiner (Ex.PE) shows that the sample contained charas.
14. The testimony of the complainant-Mushtaq Ahmad, S.I. (PW-4) and Shamim Ahmad, A.S.I (PW- 5), the recovery witnesses remained consistent. The defence failed to bring on the record in the cross-examination of the prosecution witnesses to draw an inference that it was a case of false implication. There was no reason whatsoever as to why the police would falsely implicate the appellant. The defence plea was that the appellant on the fateful day i.e. 07.11.2009, he went to the court to pursue the case F.I.R. No.71 of 2007, dated 03.10.2007 registered under Sections 353, 382, 224, 225, 186, 506, 147, 149 P.P.C at police station, Bumbanwala Sialkot, where some altercation took place between him (the appellant) and police officials of police station, Civil Line, Gujranwala. Due to which, they falsely involved him (the appellant) in the instant case. The appellant, to prove his plea, placed on record interim order sheet (Ex.DA) dated 07.11.2009 showing his presence in the court of Illaqa Magistrate. The burden is cast upon the accused to prove that the defence plea of altercation had taken place on the fateful day with police officials. Nether he appellant had adduced any evidence to show that he had any altercation with police officials nor he named the police officials.
15. All the prosecution witnesses have given a consistent version, which proves the recovery of the contraband from the appellant. Their evidence is not rendered untrustworthy only on account of their being official witnesses. The contention that no private person had been associated to witness the recovery and as such, the recovery was false, is devoid of force as by virtue of Section 25 of the Control of Narcotic Substances Act, 1997 provisions of Section 103 Cr.P.C is excluded in Narcotics cases. It is held in the case of "Fida Jan v. The State" (2001 SCM R 36) that:- "----S. 25----Criminal Procedure Code (V of 1898), S.103----Recovery of narcotics---Failure to comply with the provisions of S. 103, Cr.P.C---Effect---Application of S. 103, Cr.P.C has been excluded under the provisions of S. 25 of Control of Narcotic Substance Act, 1997."
16. As far as contention of the learned counsel for the appellant that the appellant is first offender, therefore, he deserves some leniency in awarding the sentence is concerned, from the impugned judgment passed by the learned trial court, it revealed that the learned trial court while taking note of this aspect has already inflicted lesser sentence of four years R.I with fine of Rs.30,000/-and in default of payment of fine, further undergo seven days S.I.
17. The upshot of the above discussion is that the prosecution had fully established its case against the appellant through leading, tangible and confidence inspiring evidence. The learned trial court while appreciating the evidence available on the record in its true perspective has rightly recorded the conviction and sentence against the appellant.
18. Resultantly, Criminal Appeal No.1123 of 2010 is devoid of force, which is accordingly dismissed in toto, as a consequence whereof, the conviction and sentence awarded upon the appellant by the learned trial court in terms of judgment dated 13.04.2010 is maintained.