SADIQ MAHMUD KHURRAM, J. -- The appellant Muhammad Mukhtiar was tried by the learned Additional Sessions Judge, Dunyapur, in case F.I.R. No. 549 of 2017, dated 14.10.2017 registered at Police Station Saddar Dunyapur, District Lodhran in respect of offence under Section 9(c) of the Control of Narcotic Substances Act, 1997. The learned Trial Court vide judgment dated 27.02.2018 convicted Muhammad Mukhtiar and sentenced him as:---
(i) Rigorous imprisonment for four years and six months under Section 9(c) of the Control of Narcotic Substances Act, 1997 and ordered to pay fine of Rs. 20,000/- and in default thereof to further undergo simple imprisonment for a period of six months.
(ii) The appellant was extended the benefit provided under Section 382-B of the Code of Criminal Procedure, 1898.
2. Feeling aggrieved, Muhammad Mukhtiar (convict) lodged Criminal Appeal No. 220 of 2018 against his conviction and sentence.
3. Precisely the facts necessary, as divulged in the statement of Shaukat Ali, ASI (PW-4), the complainant of the case, are as under:--- "States that on 14.10.2017, I was posted at Police Station Sadar Dunyapur. On the same day, I alongwith Muhammad Safdar 536/C, Muhammad Afzal 376/C, Muhammad Aamar 460/C, Muhammad Shabbir PQR and driver Muhammad Aslam 750/C was conducting patrolling on official vehicle No. LDA/8204 and was present at Head Manjha. A spy informer came there and told me that accused Muhammad Mukhtiar is selling Charas while sitting in the graveyard of Mouza Majha. On receiving this information, I took the spy informer and officials and conducted raid at the said place at about 11.30 a.m., where we apprehended accused present in Court who told his name as Muhammad Mukhtiar s/o Muhammad Nawaz, accused present in the Court. On his search, a blue coloured shopper was recovered from his right hand. I checked it, it was containing Charas. I made the weight of Charas with electronic scale which was already present in my investigation bag. The weight of the charas was 1150 Grams which is (P-1). I separated 58 grams of Charas as sample from the total recovered charas and made parcels of sample and remaining case property by affixing stamp S.A. I further searched Muhammad Mukhtiar. Sale proceed cash Rs. 870/- with the denomination of 8 notes of hundreds rupees and seven notes of ten rupees (P-2) were recovered from the right pocket of his shirt. I took into possession Charas (P-1) through recovery memo. Ex.P.C. Both the memos. were got signed by the PWs Muhammad Safdar, 536/C-II and Muhammad Aamar 460/C. I drafted the complaint Ex.P.E. at about 11:45 a.m., and sent it through Muhammad Afzal 376/C to the Police Station Sadar Dunyapur for registration of case. After registration of F.I.R., Khalid Mehmood, S.I. came at the spot alongwith the case file for conducting investigation of this case. I handed over him the accused Muhammad Mukhtiar, parcels of charas and recovered sale proceed cash Rs. 870/-.
On 16.10.2017, Sajjad Mehmood No. 91/HC handed over me one sealed parcel of sample which I deposited in the office of PFSA Lahore on 17.10.2017 without tempering its seals. Khalid Mehmood, S.I. recorded my statement under Section 161, Cr.P.C. to this effect on 18.102017."
4. On the above-stated facts F.I.R. No. 549/2017 (Exh.PA) dated 14.10.2017 was registered at Police Station Sadar Dunyapur, District Lodhran.
5. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned Trial Court wherein the appellant sent to face trial. The learned Trial Court framed the charge against the accused on 13.11.2017 under Section 9(c) of the Control of Narcotic Substances Act, 1997. The appellant pleaded not guilty and claimed trial.
6. In order to prove the facts the prosecution examined as many as four witnesses in total. Khalid Mehmood, S.I. (PW-3) investigated the case from 14.10.2017 till 19.10.2017. Muhammad Ammar 460/C, marginal witness of recovery memo. (Exh.PB) appeared as (PW-2) and Shaukat Ali, S.I. appeared as (PW-4) who both narrated the facts leading to the recovery of "Charas" weighing 1150 grams and made their detailed statements before the learned Trial Court. Sajjad Mahmood, 91/HC (PW-1) stated that on 14.10.2017 he recorded the F.I.R.
(Exh.PA) and on the same day Khalid Mahmood, S.I. (PW-3) handed over to him two seared parcels for safe custody which on 16.10.2017 he handed over to Shaukat Ali, S.I. (PW-4) for their onward transmission to Punjab Forensic Science Agency.
7. Learned ADPP gave up PW Muhammad Safdar 536/Cii as being unnecessary and tendered in evidence the report of Punjab Forensic Science Agency as (Exh.PF) and closed the prosecution evidence.
8. After closing of prosecution evidence the statement of appellant was recorded under Section 342 of Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to question No. 11 as to why the PWs had deposed against him, he stated that the witnesses were police officials who deposed falsely against him just to strengthen the prosecution being subordinate to the I.O. and S.H.O. The appellant however neither led any evidence in defence nor opted to appear in terms of Section 340(2) of the Code of Criminal Procedure.
9. After completion of evidence and hearing both the parties the learned Trial Court held the appellant guilty of offence and sentenced the appellant as referred to above.
10. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. Learned counsel further argued that there were glaring contradictions in the statements of the witnesses hitting at the very root of the prosecution case. Learned counsel also stated that nothing was recovered from the appellant.
11. On the other hand learned Deputy Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the charge by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other. He requested that the appeal be dismissed.
12. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
13. In order to prove the facts in issue the prosecution produced four witnesses, however Muhammad Ammar 460/C (PW-2) and Shaukat Ali, S.I. (PW-4) the witnesses of recovery and taking into possession the recovered charas through recovery memo. (Exh.PB) are of the utmost significance with respect to proving the recovery of 1150 grams of "Charas". While going through the statements of these witnesses we have noticed that the recovered 1150 grams of "Charas" was duly exhibited in their evidence as P-1 which was taken into possession through recovery memo. (Exh.PB). Both the witnesses have given each and every detail of the recovery proceedings and were cross-examined at length. Nothing fruitful cropped up during the said cross- examination. The tenor of cross-examination also reveals that the facts were not being challenged seriously. We are also conscious of Section 29 of the Control of Narcotic Substances Act, 1997, which provides that once the prosecution is able to bring on record evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise which he failed to do so in this case. The report of Punjab Forensic Science.
Agency (Exh.PD) was also tendered in evidence which confirms the nature of recovered substance. Full protocols were followed while preparing the said report.
14. With regard to the objection of the learned counsel for the appellant that no private person was made to witness the recovery proceedings suffice it to observe that it has been established now that in cases relating to recovery of Narcotics Section 25 of the Control of Narcotic Substances Act is applicable. The law clearly provides that provisions of Section 103 of Code of Criminal Procedure shall not apply to proceedings under the Act. Reliance is placed on the binding judgment of august Supreme Court of Pakistan Muhammad Sarfraz v.
The State and others (2017 SCMR 1874) wherein it has been held as under:-- "The arguments regarding applicability of Section 103, Cr.P.C. has no force as Section 25 of the Act had ousted the applicability of Section 103, Cr.P.C. in the cases of narcotics".
15. In view of the material available on the record we are of the considered view that the prosecution has successfully proved this case beyond shadow of doubt by producing relevant and admissible evidence.
Therefore, we, while maintaining the conviction of the appellant recorded by the learned Additional Sessions Judge, Dunyapur vide judgment dated 27th of February, 2018, dismiss the instant appeal.