Ch. Abdul Aziz, J.--Hotak Khan (appellant) involved in case FIR No. 383/2019 dated 11.05.2019 registered under Section 9(c) of the Narcotic Substances Act, 1997 at Police Station New Town Rawalpindi, was tried by learned Additional Sessions Judge, Rawalpindi. The learned trial Court vide judgment dated 15.01.2020 proceeded to convict and sentence the appellant in the following terms: "Under Section 9 (c) of Control of Narcotic Substances Act, 1997 to suffer rigorous imprisonment for 05-years, 10-months and 24-days with the direction to pay fine of Rs. 31,750/-and in default whereof to further undergo 5- months & 27-days SI. Benefit of Section 382-B, Cr .P.C. was also extended in favour of the appellant".
Challenging his conviction and sentence, appellant filed the instant appeal.
2. Briefly stated the facts of the prosecuti on case as disclosed by Habib-ur-Rehman SI (PW.5) in F.I.R (Exh.PB/1) are to the effect that on 11.05.2019 he along with Kamran Zahoor 3870/HC, Rashid 3663/C, Naeem-ul-Hassan 2391/C, Yousaf 3328/C and Shahid Gulzar 1236/C was present at Katarian picket in connection with patrolling and searching of criminals; that at about 11:00 a.m., he received spy information that a person, namely , Hotak while boarding black colour Honda-125 motorcycle was going towards Pindora from Banni side to deliver Charas to his customers and if area was cordoned off, he could be arrested; that upon such information the police party reached Haidri Chowk and during checking Hota k Khan (appellant) came there while boarding black colour Honda-125 motorcycle and was apprehended; that from the school bag being carried by the appellant on his shoulder , three packets wrapped in yellow colour tape were recovered; that from two packets Charas Garda total weighing 2200 grams i.e. 1100 grams from each packet was recovered; that 55-grams were separated from each packet for chemical analysis; that from the third packet, heroin weighing 540 grams was recovered, out of which 27 grams were separated for chemical analysis. Thereafter he drafted complaint (Exh.PB) and sent the same to the police station througi' Shahid Guizar 1236/C for the registration of formal F .I.R.
3. The written complaint (Exh.PB) was transcribed into formal F.I.R (Exh.PB/1) which was chalked out by Muhammad Nazeer Baig SI (PW.3). Thereafter , Makhdoom Hussain SI investigated the case, who interrogated Habib-ur-Rehman SI (PW.5) who handed over to him six sealed parcels pertaining to this case, one school bag, police papers, one motorcycle Honda-125 and custody of Hotak Khan (appellant) . He recorded the statements of witnesses under Section 161, Cr.P.C., prepared rough site-plan of the place of recovery (Exh.P A), interrogated the of appellant and made his formal arrest. He after having found the appellant guilty prepared report under Section 173, Cr .P.C., while placing his name in Column No. 3 and sent the same to the Court of competent jurisdiction.
4. The prosecution in order to prove its case against the appellant, produced as many as five PWs. Makhdoom Hussain SI (PW.1) who investigated the case as well as transmitted samples to the office of PFSA, Lahore, Tariq Mehmood 3473/LHC (PW.2) who was serving as Moharrar/Station Clerk on the eventful day, Muhammad Nazeer Baig SI (PW.3) who chalked out the formal F.I.R (Exh.PB/1), Kamran Zahoor 3870/HC (PW.4) and Habib-ur- Rehman SI (PW .5) who narrated the details of recovery proceedings.
5. Learned trial Court also examined Hotak Khan (appellant) under Section 342, Cr.P.C. who in response to question "why this case was registered against you and why PWs deposed against you" made the following reply: "In six day of holy Ramdan, police arrested me on 11.05.2019 and demanded huge amount as Eidi and upon my refusal they booked me in this false case. I am previously non-convict. Nothing was recovered from my possession.
I am labourer . PWs deposed against the just to strengthen their false prosecution's case."
Neither the appellant opted to appear under Section 340(2), Cr.P.C. nor produced any evidence in his defence.
After the completion of evidence, the appellant was convicted and sentenced, as mentioned above, hence, the instant appeal.
6. It is contended by learned counsel for the appellant that the prosecution case from the face of it appears to be dubious in nature; that though as per allegation, 2200 grams of Charas and 540 grams heroin was recovered from appellant, however , during trial prosecution miserably failed to prove such recovery; that though the alleged recovery of narcotics was effected from a public place, however , none from the vicinity was produced as witness during trial; that the recovery witnesses contradicted each other on all material aspects which rendered their testimony unworthy of any credence that though reasonable doubt emerges from the recital of prosecution evidence, however , its benefit was not extended to appellant. With these submissions, it was urged that conviction awarded to the appellant be set-aside.
7. On the other hand, learned Additional Prosecutor General strongly controverted the arguments advanced on behalf of the appellant and submitted that huge quantity of narcotics was recovered from the appellant for which he failed to give any explanation; that there was no reason for the police officials to falsely plant such a huge quantity of narcotics on an innocent person; that during trial the detail of recovery proceedings was successfully narrated by the prosecution witnesses; that despite lengthy cross-examination, the defence failed to get any benefit from the prosecution witnesses and that in the given circumstances, the conviction awarded to the appellant needs no interference.
8. Arguments heard. Record perused.
9. It spells out from the review of record that on 11.05.2019 at about 11:00 a.m. Habib-ur-Rehman SI (PW.5) along with other police officials while being present at Katrian Picket for patrolling as well as searching of criminals received a spy information regarding the arrival of Hotak Khan (appellant) on a Honda-125 Motorcycle there.
Pursuant to such information, Habib-ur-Rehman and other police officials barricaded the area. Hotak Khan (appellant) came at Haidri Chowk while boarding 125-Motorcycle and was accordingly apprehended. From the search of the appellant, three packets of narcotics i.e. Charas total weighing 2200 grams from two packets and heroin weighing 540 grams from third packet was recovered. Before proceeding any further , we consider it important to mention here that in order to prove charge under Section 9 of CNSA, 1997, the prosecution is legally obliged to prove following factors:
(i) Recovery of narcotics from the accused;
(ii) Safe custody of recovered substance;
(iii) Safe transmission of recovered substance to Government Analyst/Chemical Examiner; and
(iv) The proof that the recovered substance is narcotics/ contraband substance within the purview of CNSA, 1997.
If any of the afore-mentioned aspect remains unproved, the prosecution is apt to fail. Conversely , if the afore- mentioned requirements are successfully proved by the prosecution, a conviction is to be awarded on the basis thereof.
10. In the aftermath of above discussion, we have scanned the record of the case with utmost circumspection and have noticed that in order to prove the recovery of 2200 grams of Charas and 540 grams of heroin from Hotak Khan (appellant), prosecution mainly banked upon the deposition of Kamran Zahoor 3870/HC (PW.4) and Habib-ur-Rehman SI (PW.5). It has been noticed by us that though both the recovery witnesses were cross- examined in depth and detail, however, nothing as such was brought on record from which it may even remotely insinuate that they were either having any previous enmity with the appellant or had any reason to falsely implicate the appellant in this case by planting huge quantity of narcotics. Both the witnesses remained consistent in respect of mode, manner of recovery and even time and place from where it was effected.
Likewise, we have not come across any factor from which it may allude that two witnesses have contradicted each other regarding any material factor pertaining to interception of the appellant and the recovery effected from his possession. Keeping in view the fact that a size-able amount of Charas as well as heroin was recovered from the possession of the appellant, it cannot by any stretch of imagination, be held that it was falsely planted by the police and more importantly when there is no background of any hostility attributable to the police.
11. Though learned counsel pressed hard on the ground that the recovery was effected from a place known as Haidri Chowk and despite availability of private witnesses they were not associated in the proceedings. Since the provision of Section 103, Cr.P.C. has been made inapplicable by the Legislature through insertion of Section 25 in Control of Narcotic Substances Act, 1997, thus non-association of two private independent witnesses in the proceedings leading to the recovery of narcotics can in no manner be considered as fatal for the prosecution case.
Reference in this regard can be placed upon the cases reported as Zafar v. The State (2008 SCMR 1254 ), Zulfiqar Ahmad v. The State (2006 SCMR 800), Muhammad Khan v. The State (2008 SCMR 1616 ) and Naveed Akhtar v . The State (2018 MLD 1642 ).
12. We have also pondered in detail upon the aspect of safe custody of recovere d contraband substance and its transmission to the office of PFSA, Lahore. It is also discernible from record that the prosecution successfully proved the safe custody and its onward transmission to the office of PFSA, Lahore . It is evident from the statement of Habib-ur-Rehman SI (PW.5) that on 25.11.2019 he handed over the recovered Charas and Heroin to the Investigating Officer, namely , Makhdoom Hussain SI (PW.1) who further delivered it to Moharrar of the police station i.e. Tariq Mehmood 3473/LHC (PW.2). The Moharar/Station Clerk kept the case property in safe custody and on 16.05.2019 handed over two sealed sample parcels of Charas and one sealed sample parcel of heroin to Makdoom Hussain SI (PW.1) who depo sited them in the office of PFSA, Lahore the same day. We have also peeped through the report of PFSA (Exh.PF), according to which, the parcels were found to be of Charas and heroin.
13. This Court is also not oblivious of the fact that menace of drugs has penetrated deep into our life which has polluted and destroyed the future of our generations. The persons like the appellant who trade in narcotics are required to be dealt with iron hands and for this reason exemplary punishments are to be awarded to them in order to create deterrence to like minded criminals. We have meticulously examined the record of the case and have not come across any circumstance, lacuna, contradiction or anomaly the benefit of which can be extended to the appellant in any manner . In the said circumstances, we do not find any force in the instant appeal qua the conviction and sentence of the appellant. Resultantly , the instant appeal fails and is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.