ALI BAQAR NAJAFI, J---- Through this appeal under section 48 of Control of Narcotic Substances Act, 1997, the judgment dated 05.11.2020 passed by the learned Sessions Judge, Chiniot in case FIR No. 144 dated 20.04.2020 registered under section 9(c) of CNSA, 1997 at Police Station Sadar Chiniot, has been challenged whereby the appellant was convicted under section 9(c) Control of Narcotic Substances Act, 1997 and sentenced to rigorous imprisonment for seven (7) years with fine of Rs. 50,000/- in default whereof to further undergo simple imprisonment for seven (7) months. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.
2. Brief facts of the prosecution case against the appellant as narrated by Ubaid Ullah, S.I. (PW-1) in complaint (Exh.PC) is that on 20.04.2020 he along with other police officials was present at More Bhatti Wala Chak No. 127/JB Faisalabad Road, the appellant holding a blue colour shopper in hand, on seeing the police party tried to escape but was apprehended. Upon search, heroin weighing 2150 grams was recovered from the shopper held by the appellant, out of which 108 grams was separated for chemical analysis and prepared one sample parcel and one parcel for the remaining heroin. Upon personal search of the appellant, cash Rs. 1070/- and a mobile phone was recovered. The sample parcel and the parcel of remaining heroin along with cash was taken into possession vide recovery memos (Exh.P A) and (Exh.PB) attested by Sajjad Akbar , 225/HC and Tasawwar Iqbal, 713/C. The complainant drafted the complaint (Exh.PC) and sent the same to police station through Javed Iqbal, 65/C (given up) for registration of formal FIR whereafter the FIR (Exh.PC/1) was registered.
3. After completion of investigation, challan against the appellant was submitted before the trial court. On indictment of the appellant, he pleaded not guilty and claimed trial. The prosecution produced four (4) prosecution witnesses, namely , Ubaid Ullah, S.I. (PW-1), Sajjad Akbar , 225/HC (PW-2), Qamar Zaman, 1168/MHC (PW-3) and Sarfraz Khan, S.I. (PW-4) by giving up Tasawwar Iqbal, 713/C and Javed Iqbal, 65/C and by tendering report of PFSA (Exh.PE) closed its evidence. There after, the appellant was examined under section 342, Cr.P.C., wherein he professed his innocence and denied all the allegations levelled against him. The appellant did not opt to depose within the scope of section 340(2), Cr.P.C. In reply to the question as to why this case against you and why the PWs have deposed against you, he replied as under:- "I am innocent. I was returning from Sahiwal on 18.04.2020 after leaving my wife at Chak No. 84/5.L Tehsil and District Sahiwal. My motorcycle broke down at Faisalabad which I left there and took a lift with a biker of my village.
No sooner did we reach KATCHA Road of Chak No. 131, the said biker escaped with his motorcycle leaving me there. Ubaid Ullah complainant apprehended me and illegally detained my in Chowki Pul Dingru overnight. Ubaid Ullah, S.I. visited police post Dingru at 2:00 a.m. and taking me in a private car kept on detaining me at unknown place till 20.04.2020. Ubaid Ullah S.I. had been threatened to involve me in serious offences, if I did not grease his palm. On 20.04.2020 I was taken to area of Chak No. 112/JB Ram Dulai at 2:00 p.m. and thereafter I learnt that I was involved in this case falsely .
I, through my real brother presented an application to investigating officer for collection of CDR Mark-A of my telephone No. 03469564131 in support of my contention but he did not collect the CDR Mark-A. I, therefore, preferred a complaint to DPO, Chiniot for conducting an inquiry against Ubaid Ullah S.I. for false and vexatious arrest and recovery , upon which, SP Investigation was assigned the duty to inquire the matter . I was not associated in the said inquiry by the SP Investigation nor she had collected CDR Mark-A of my aforesaid telephone number in support of my plea of innocence, false involvement and vexatious recovery which he can be confirmed from record of the concerned telephone cellular company ."
4. After conclusion of the trial, the learned trial court pronounced its verdict against the appellant and awarded him punishment as aforementioned.
5. We have heard learned counsel for the parties and perused the record with their able assistance.
6. To begin with the safe custody of both sample parcels and case property is being discussed. Qamar Zaman, 1168/ MHC, Muharrir (PW-3) stated that on 20.04.2020 he received both the packets of heroin from Sarfraz. Khan, S.I. (PW-4) and deposited it in Sadar Malkhana, but the official who produced it from said Malkhana was not produced by the prosecution. Register 19 maintaining the relevant entries was also not produced in evidence. On 21.04.2020, he gave the sample parcels to Ubaid Ullah, S.I. (PW-1) who deposited the same in the office of Punjab Forensic Science Agency . Obviously , in the absence of an important chain of the police official who produced the two parcels to the said Muharrir (PW-3), the safe custody is not proved. To substantiate the animosity , Ubaid Ullah, S.I. (PW-1) admitted in cross-examination that his caste is Kalyar and Loonas are their 'politically rivals and that the appellant is a Loona by caste. Both belong to the same area. Besides, the report of Punjab Forensic Science Agency (Exh.PE) reveals that the net eight of the sample was 100.85 grams hereas 108 gram was separated then ow it decreased by 8 grams but the eport is positive to the extent of this eight. By placing reliance upon kramullah and others v. The State (2015 CMR 1002), conviction can be awarded my on 108 grams which is rigorous prisonment for one year and 9 month with fine of Rs. 11000/- and in case of default of payment of fine to further Undergo simple imprisonment for four (4) onths as per sentencing policy as given Ghulam Murtaza and another v. The state ( PLD 2009 Lahore 362 ).
7. For the above stated reasons, this appeal is dismissed while maintaining he conviction . However , the amount of fine shall remain intact but the sentence is reduced to what the appella nt has already undergone. The appellant is behind the bars and had spent more than one year. He shall be released forthwith if he had paid the fine and not required to be detained in any other criminal case.