Aalia Neelum, J.- Muhammad Esa son of Ghulam Nabi, caste Joyia, aged 54 years, resident of Phathi Joyianwali, Police Station Piplan, Tehsil Piplan, District Mianwali, the appellant was involved in case F.I.R. No.300 dated 07.12.2008, offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Piplan, District Mianwali and was tried by the learned Addl. Sessions Judge/Special Court (CNSA), Mianwali. The learned trial court seized with the matter in terms of judgment dated 15.03.2010 convicted the appellant under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo for four years imprisonment with direction to pay Rs.30,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for six months. 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 Esa, appellant assailed his conviction through filing of the instant Criminal Appeal.
3. The prosecution story as alleged in the F.I.R (Exh.PA/1) lodged on the complaint (Exh.PA) of Raza Ullah Khan, Inspector/SHO (PW-5) is that on 07.12.2008 he along with Muhammad Asghar, SI, Salah Muhammad, SI, Muhammad Asghar, Eid Muhammad,. Ghulam Hussain, Umar Hayat and Muhammad Aslam, constables was present at Phathi Joyianwali. At about 11.30 p.m. He received spy information that accused Muhammad Esa was narcotic seller and is present in front of his house on his motorcycle. The complainant along with the police party conducted raid at the accused but he ran away while leaving the motorcycle on seeing the police party. A shopper was hanging with the safeguard of motorcycle which contained Charas weighing 1038 grams. Out of the recovered narcotic substances, the complainant separated 10 grams Charas for onwards transmission to the office of chemical examiner for analysis. The samples and the remaining quantity of Charas were converted into separate sealed parcels and took the same along with the motorcycle No.3953/MI into possession vide recovery memo (Exh.PB) which was attested by Saleh Muhammad, SI (PW4) and Muhammad Ashraf 848/C (given up PW). The complainant (PW-5) drafted the complaint (Exh.PA) and sent the same to the Police Station for registration of formal F.I.R. (Exh.PA/1).
4. At the time of conducting the raid, the accused was standing in front of the room. The doors of the said room were open. The said room was not residential and there was no residential abadi around the said room. The Investigating Officer searched the said room and recovered deck, tape- recorder along with CD (thee pieces), one small TV and one helmet which he took the same into possession under section 550 Cr.P.C. Vide recovery memo (Ex.PD) which is attested by Saleh Muhammad SI (PW-4) and Muhammad Ashraf 848/C (given up PW).
5. Thereafter the complainant/Investigating Officer searched for the accused but he was not available. On 13.12.2008 he filed the application (Ex.PE) before the learned Illaqa Magistrate for issuance of non-bailable warrants of arrest of the accused which was allowed vide order (Ex.PE/1).
He entrusted the warrants of arrest to Muhammad Ashraf 848/C (given up PW) but the accused could not be arrested. On 19.12.2008 the Investigating Officer filed application (Ex.PF) before the learned Illaqa Magistrate for service of the accused through proclamation which was allowed on which proclamation was entrusted to Muhammad Ashraf 848/C for execution. However, accused did not appear despite his service through proclamation and he prepared the challan under section 512 Cr.P.C. And submitted the same in the court. The accused filed his pre-arrest bail petition which was rejected on 30.1.2009 upon which the Investigating Officer arrested Muhammad Esa, appellant.
6. The Investigating Officer, on the day of occurrence, reached in the police station and handed over two sealed parcels, one sample parcel of Charas and the other parcel of remaining Charas to Hameed Ullah 731/HC (PW-1), Moharrar for safe custody which he kept in the Malkhana. On 18.12.2008 he (PW-1) handed over the sealed sample parcel of Charas to Muhammad Arshad 1333/C (PW-2) for onward transmission to the office of Chemical Examiner, Rawalpindi. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C., while placing the name of the accused in Column No.3 of the Challan and sent the same to the court of competent jurisdiction.
7. The learned trial court formally charge sheeted the appellant on 09.4.2009, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as five witnesses. Raza Ullah Khan, Inspector/SHO (PW-5) is the complainant as well as the Investigating Officer of the case, whereas Saleh Muhammad, SI (PW-4) and Muhammad Ashraf 848/C (given up PW) are the witnesses of the recovery. On presentation of complaint, Said Amir, ASI (PW-3) had chalked out formal F.I.R. (Exh.PA/1).
8. On 4.5.2009, the learned Assistant District Public Prosecutor vide his separate statement gave up PW Muhammad Ashraf 848/C and tendered the report of the Chemical Examiner regarding Charas (Exh.PG) and closed the prosecution evidence.
9. The appellant was also examined under Section 342, Cr.P.C. Wherein he opted to lead defence evidence, however, not to appear as his own witness in terms of Section 340(2) Cr.P.C in disproof of allegations levelled against him and while replying to a question that why this case against him and why the PWs have deposed against him, the appellant made the following deposition:- "Raza Ullah Inspector/I.O. Had personal grudge with me due to which he conducted all the proceedings fictitiously. He also fictitiously planted the Charas on me. All the witnesses being subordinate to him deposed falsely against me. I am innocent. I was admitted in RH Rihanwala District Nankana."
10. In defence, statement of the appellant-Muhammad Esa was recorded without oath in which he tendered in his defence evidence copy of complainant titled as "Muhammad Esa v. Rasa Ullah" (Mark-A), attested copy of the cursory statement of Muhammad Esa (Ex.DB) and other witnesses (Ex.DB/1), (Ex.DB/2), (Ex.DB/3), (Ex.DB/4), (Ex.DB/5), copy of patient register (Mark-B)
(four pages) outdoor patient tickets (Mark-C) (two pages), Bed Head Ticket (Mark-D) (two pages), indoor patient register (Mark-E), copy of bail order dated 12.12.2008 (Mark-F), copy of the MLR No.80/2009 (Mark-G) (all marked documents under objection by the Prosecutor) and closed the defence evidence.
11. 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.
12. At the very outset, learned counsel for the appellant has stated that the appellant has pleaded an alibi that he was admitted in RHC Rihanwala District Nankana Sahib from 06.12.2008 to 08.12.2008. Learned counsel for the appellant further submitted that if court is of the view that the plea of alibi is not proved then sentence be reduced to already undergone.
13. On the other hand, learned Addl. Prosecutor General has opposed the contention raised on behalf of the appellant and stated that in view of the quantity of recovered narcotic substance, the learned trial court has rightly convicted the appellant.
14. We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Addl. Prosecutor General and have minutely perused the record available on the file.
15. As far as the plea of alibi raised by the appellant is concerned, we find that no attempt was made by the appellant to produce witness for proving his alibi after his examination under section 342 Cr.P.C. Moreover, we find that the appellant filed private complaint titled as "Muhammad Esa v.
Raza Ullah" (Mark-A) on 14.02.2009 and the cursory statements of the complainant and five other witnesses was recorded on 27.01.2009, 08.04.2009 and 06.05.2009 but up till 19.12.2009 no order upon private complaint filed by the appellant was passed. In such circumstance no credence can be attached to it. We have also noted that the appellant was resident of Piplan, District Mianwali whereas he produced copies of the Patient Register (Mark-B), Outdoor Patient Ticket (Mark-C), Bed Head Ticket (Mark-D) and Indoor Patient Register (Mark-E), which reflects that he was admitted in the R.H.C Rihanwala District Nankana Sahib on 06.12.2008 and discharged on 08.12.2008. It is strange that the appellant admitted in the hospital for treatment of chest bronchitis which was far away from the residence of the appellant, which creates doubt about admission of the appellant in the hospital. The plea of alibi involves a question of fact and the appellant failed to produce Medical Officer or Record Keeper to substantiate the plea of alibi. A careful delving into the statements of Razaullah Khan, Inspector/SHO (PW-5) and Salah Muhammad, S.I (PW-4) would reveal that when their examination-in-chief was tested by cross-examining them in a grueling manner, no material worth mention favourable to the accused could be elicited or wrenched out.
16. On the other hand Hamedullah, H.C (PW-1) deposed that, "On 07.12.2008, I was posted as Moharrar Police Station Piplan. On the same day, Razaullah, I/SHO handed over to me two sealed parcels, one sample parcel of Charas and the other parcel of remaining Charas which I kept in the Malkhana. On 18.12.2008, I handed over the sealed sample parcel of Charas to Muhammad Arshad 1333/C for conveying the same to the office of Chemical Examiner, Rawalpindi."
17. During cross-examination no suggestion was regarding non-handing over case property and parcel of sample by the complainant (PW-5). The prosecution witnesses were consistent and trustworthy, bearing a ring of truth has to be relied upon without any demur.
The occurrence herein virtually stands admitted to some extent by the appellant. As would be apparent from the evidence of Hameed Ullah, H.C (PW-1) and Muhammad Arshad, constable (PW2), the deposit of case property and parcel of sample by the complainant was not denied by the appellant. We have been persuaded to hold that the appellant was rightly convicted and sentenced by the learned trial court. We, thus, see no infirmity in the impugned judgment to the extent of conviction of the appellant, as awarded by the learned trial court and as such we find no ground or justification to warrant interference in the same. Consequently, we are inclined to maintain the conviction as recorded by the learned trial court.
18. Since the appellant is first offender as no report/record has been produced to show that the appellant was previously convicted or involved in cases of like nature, therefore, the case of the appellant calls for a lenient view. Reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan titled, "Abdul Rehman v. The State" (2011 SCM R 965) wherein it had been held that, "After perusal of the record in light of the arguments advanced before us, it appears that there is no previous record of the conviction of the petitioner in any offence. The recovery effected in Charas as pointed out by the learned counsel is distinct from heroin, therefore, the case calls for a lenient view." In the case of "Khuda Bakhsh v. The State" (2015 SCM R 735) the Hon'ble Supreme Court of Pakistan has held that, "Charas unlike other narcotics such as heroin is less harmful and dangerous in the present case, keeping in mind the quantity (two kilograms), type of narcotic substance (Charas) and as this was the appellant's first offence, the sentence of imprisonment for life awarded to the appellant appears to be excessive...."
19. From the report requisitioned from the Superintendent, Central Jail, Mianwali dated 24.05.2010, it reveals that the appellant has served out 2 years, 10 months and 24 days sentence of imprisonment.
20. For what has been discussed above, we while dismissing the appeal, modify the sentence of rigorous imprisonment passed against the appellant by the learned trial court, is reduced to that already undergone by the appellant in view of judgment of Hon'ble Supreme Court of Pakistan titled, "Ghulam Murtaza and others v. The State" (PLD 2009 Lahore 362) and reduced the fine from Rs.30,000/- to Rs. 20,000/-, however, in case of default in payment of fine, the sentence of six months S.I is reduced to 5 months. The appeal is accordingly dismissed with the aforesaid modification in the sentence and conviction.