' This appeal is directed against the judgment dated 21-7-1991 passed by the learned Additional Sessions Judge, Multan, whereby the appellant was convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and senenced to suffer R.I. For ten years, fine of Rs,20,000 or in default thereof to suffer R.I. For two and half years more and twenty stripes with benefit of section 382-B, Cr.P.C.
2. It is the case of prosecution that on 7-11-1990 under command of Group Leader Ch. Umar Hayat, F.I.Os. Of P.N.C.B. Muhammad Aslam, Mehmood Khan, Khadim Hussain and other staff was on patrolling duty in Multan when just before 3-30 p.m. Muhammad Aslam, F.I.O. Received secret information that Asghar Ali, appellant, was present in his house and had to supply heroin to one of his customers. At that time police party consisting of S.H.O. Muhammad Azam and others arrived there. A raid was arranged,with joint efforts of P.N.C.B. And the police force. It is further case of the prosecution that this informer led the party to the house of the appellant where the appellant was coming out of his house and just near there he was apprehended by Muhammad Aslam, F.I.O. With the aid of other members of the raiding party. From his possession two kilograms of heroin was recovered. One gram of heroin was taken as sample. The sample as well as the remaining heroin was wrapped in two separate parcels. The sample was sent to the Chemical Examiner, Multan, who opined the same to be heroin. The remaining heroin was deposited in Malkhana The appellant was arrested and F.I.R. No,221/90 was registered at Police Station Kup. However, after usual investigation the appellant was challaned under Article 3/4 of the Order and sent up for trial before the Court.
The case came for trial before the learned Additional Sessions Judge, Multan, where the appellant did not plead guilty and claimed trial.
3. In support of the case the prosecution examined P.W.1 Muhammad Salim A.S.I., who on 7-11-1990 on the written complaint of Muhammad Aslam, F.I.O. (Exh.PA.) recorded the formal F.I.R. (Exh.PA./1) at the Police Station Kup. P.W.2 Sikandar Hayat, H.C. Moharrir Malkhana of Police Station Kup, who on 7-11-1990 received two parcels for safe custody in Malkhana; he handed over the sample parcel to Faiz Muhammad, Constable, for delivery to the Chemical Examiner, Multan on 10-11-1990, and deposited the remaining contraband material at Saddar Malkhana, P.W.3 Rana Khadim Hussain, F.I.O. Who was member of the raiding party, P.W.4 Tariq Mustafa, S.I. Narcotics Control Board, Multan, was also member of the raiding party, P.W.5 Faiz Muhammad, Constable on 10-11-1990 received the sample from Sikandar Hayat H.C. And delivered the same in the office of the Chemical Examiner and P.W.6 Muhammad Aslam, F.I.O. Is member of the raiding party, he apprehended the appellant and recovered the heroin from him, on his complaint F.I.R. Was recorded, he examined the witnesses and submitted challan against the appellant.
4. In his statement recorded under section 342, Cr.P.C. The appellant denied the allegations, pleaded innocence and submitted his explanation as under:-- "I am the member of Body Building Club, Multan. One Nafees used to supply heroin to the members of said club and was equally member himself. I and other members of the club forbade him time and again but when he did not stop, we gave him the beating a week earlier of the registration of this case. He was annoyed with me and with the connivance of the officials of the Narcotics Control Board and the police falsely got challaned me in this case and planted the fake recovery. I was arrested from my house early in the morning and then thereafter this false story has been concocted by concerned quarters."
' He did not examine himself on oath but examined D.W.1 Abdul Jabbar and D.W.2 Salah-ud-Din in his defence. Both of the defence witnesses have stated that the appellant was implicated in the case at the instance of one Nafees. Besides, D.W.1 Abdul Jabbar has stated that the appellant was arresed from his house. However, the learned Additional Sessions Judge, Multan, did not rely on his plea of defence but accepted the version of the prosecution, hence convicted the appellant for the offence as stated hereinabove. Hence this appeal.
5. Mr. Q.M. Salim, Advocate, appeared for the appellant and Mr. Muhammad Akhtar, Additional Advocate-General Punjab, with Mr. Muhammad Naeem, Advocate appeared for the State.
6. In support of the appeal the learned counsel for the appellant urged:--
(i) That the appellant is a Body Builder, who could not indulge in inferior act of trafficking in heroin.
(ii) The place wherefrom the appellant was apprehended was a busy street with huge population but no person from the public was examined.
(iii) Neither the secret informer nor Group Leader Ch. Umar Hayat have been examined, which gives fatal blow to the prosecution.
(iv) The huge quantity of two K.Gs. Cannot be kept in Shalwar. There are material contradictions in the evidence of the prosecution witnesses.
(v) The heroin was not kept in safe custody but tampered with, hence no reliance can be placed on the Chemical Examiner's report. Before the trial Court the appellant had moved application for re- examination of the material but his application was erroneously rejected by the learned trial Court.
(vi) The sentence is severe.
7. Mr. Muhammad Naeem Khan, Advocate, for the State submitted that there are material contradictions in the statements of the witnesses. However, he could not substantiate his contention from the record. The learned Additional Advocate-General, Punjab, supported the judgment passed by the learned Additional Sessions Judge.
8. During the course of arguments besides the abovesaid objections the learned counsel for the appellant pointed out that in F.I.R. The appellant has been shown to be a notorious drug dealer, which as such has prejudiced the case of the appellant.
9. It may be observed that F.I.R. Is not a substantive piece of evidence but is an information for the purpose of moving the police to investigate a case. No reference can be made towards a fact unless the same is brought in deposition before the Court. The word "Notorious drug dealer" has not been brought in evidence before the trial Court by witness Muhammad Aslam. Hence this objection has no force and is of no consequence.
10. Turning to the first ground it may be observed that in his explanation recorded under section
342. Car,. The appellant has himself admitted that Nafces was member of the club who used to supply heroin to the members of the same club. The objection raised by the learned counsel for the appellant gets his reply from the explanation of the appellant himself. The objection as such is superfluous.
11. Regarding the examining of witnesses from the public the learned counsel for the appellant has relied on an unreported case decided by this Court in Khalid Mahmood v. The State Criminal Appeal No,445/L of 1990. The observations made therein are as under:-- "The learned counsel contended, and this was the admitted position, that the place of occurrence was inhabited all around and frequented by many people but the police did not associate any public man with the proceedings touching the occurrence. The prosecution did not give any explanation for not joining any public man to witness the occurrence. There was no question of non-availability of witnesses from the public. In the absence of any explanation coming forth from the prosecution it would be rather unsafe to bank upon the depositions of police men to hold the appellants guilty of the commission of offence of Zina. There is complete lack of independent evidence in support of the prosecution evidence given by the policemen. Even the learned counsel for the State was of the view that it was not desirable and safe to make the evidence of police officials, without any corroboration from independent source, especially when the proprietor of the hotel had enmity with a person who had good relations with the police and who was harking that the case had been set up simply to hark him, as basis of conviction of the appellants for the commission of such a heinous crime as of Zina."
12. It may be pertinent to observe that this authority has no relevance so far as the present case is, concerned. Hence it renders no benefit to the appellant. It may be further observed that in the case of. Zeb-ul-Haram v. The State PLD 1991 FSC 1, decided by a Division Bench of this Court on 20-11- 1990, it has been held that "the members of the public decline to be witness in such cases and even if there had been any other private person he, too, would have refused to be a witness. The difficulty in having witnesses from public can very well be appreciated as the narcotic trafficking is being carried on in the world in a most organized manner and if any member of the public chooses to come forward as a witness to the process of recovery or appears in the Court to depose against the persons charged against, he runs the risk of his life and property and some times of his family members too". This authority is in accord with the circumstances of the case. In his deposition Muhammad Aslam, F.1.0., has clearly stated that he tried to contact witnesses from the public but nobody was prepared to act as witness. The objection raised by the learned counsel for the appellant, hence, has no force.
13. It may be further observed that the secret informers are never brought to light by the Investigating Agencies. They have the protection as such.
' Disclosing of his name or his non-production before the Court will not affect the case of the prosecution at all. For non-examination of Ch. Umar Hayat, Group Leader explanation has been given by witness Muhammad Aslam that he was there but had done nothing in respect of the recovery of the material from the appellant, hence he was not examined. The obejction raised in that behalf has also no force.
14. Turning to the possibility of keeping two kilograms of heroin in "Dubs" of Shalwar the learned counsel for the appellant had brought two small bags containing one kilogram of powder for the purpose of demonstration. It may be observed that the appellant himself is a body builder he must only be an expert in concealing heroin in "Dubs" of his Shalwar. In that respect a demonstration cannot be made in Court by the State counsel. Such keeping of article in "Dubs" of Shalwar cannot be impossible. The objection as such has no force.
15. Regarding application moved before the Court for re-examination of the heroin, it may be observed that the learned trial Court had received instructions from the High Court to decide the case by 31-7-1991. Many applications were moved by the learned counsel for the appellant before the learned trial Court for one or the other purpose, who had allowed some of them, but by allowing this application the case would have not been decided by the given date. The learned trial Judge as such had rejected his application promptly. Besides, the sample was taken from the bulk and sent for examination to the Chemical Examiner, the examination of the rest of the material was hence not necessary. The application as such was rightly rejected by the learned trial Judge.
16. Regarding the safe custody of the sample and the case property the learned counsel for the appellant drew my attention to the following extracts from the evidence of P.W.2 Sikandar "(1) The other parcel was got deposited by me in the Malkhana Saddar, intact.
(ii) It is correct that according to my duties, I took the case property deposited with me for safe custody in the Malkhana by any of the Police Officer.
(iii) I had stated before the I.O. That the other parcel was got deposited by me in the Sadar Malkhana.
(iv) I had deposited this parcel of my own, with the Incharge of the Malkhana.
(v) It is correct that it is the duty of the Moharrir Malkhana to deposit the parcels to the Sadar Malkhana immediately after its deposit.
(vi) I do not remember that as to why I deposited the parcel with Sadar Malkhana or handed over to Faiz Constable with some delay."
17. In respect of the first extract it may be observed that there is no ambiguity, that Sikandar Hayat, Moharrir, had received the article and had got it deposited in Sadar Malkhana. Possibly Sadar Malkhana was mistaken to be Sadar Police Station by the appellant. It is why before the learned trial Court an application had been moved by the learned counsel for the appellant for calling the record of Malkhana of Police Station Sadar. Regarding the second extract, there appears also to be no ambiguity. The witness has stated that it was his duty to receive property for depositing in Malkhana produced before him by any Police Officer. The third extract is also regarding depositing of the parcel at Saddar Malkhana which had already been explained. In fourth extract the witness has explained that he had deposited the parcel with the incharge of the Malkhana at his own discretion. In respect of the fifth extract it may be observed that possibly the parcel.Regarding heroin may have been ordered to be deposited at Sadar Malkhana to avoid tampering with it. It may be a practice that is why the witness has not properly replied to extract No,6. The abovesaid extracts in no way favour the appellant's case.
18. Regarding the depositing of the material the learned counsel for the appellant also pointed out the following extract from the evidence of P.W.6 Muhammad Aslam, F.I.O.:-- "I did not make any entry in the daily diary regarding the deposit of case property. Voluntarily stated that the said entry is made in Register No,19. I do not remember as to after how much time of my reaching to my office, I went to the P.S. Kup for the deposit of case property. (At this stage, the learned defence counsel has gone through the Register No,19 and at Srl. No,235 an entry is made regarding the deposit of parcels with the Moharrir of Malkhana on 7-11-1990. The learned defence counsel has raised an objection that the date 7-11-1990 in that entry is made later on with different ink but it does not appear so). The relevant entry is signed by the Court. The learned defence counsel also pointed out that the date 20th of November, 1990 has been changed into 10-11-1990 appears so but the statements of Sikandar Hayat and Faiz Muhammad are shown to be recorded on 11-11-1990 and that the result of Chemical Examiner is bearing the date 14-11-1990 which means that the cutting is bona fide. The learned defence counsel also pointed out that the figures 559 were inserted after erasing some entry."
' In respect of the corrections the learned trial Judge has given his observations and found nothing wrong therein. I also take the same view as taken by him. Nothing wrong has been pointed out in those abovesaid extracts so as to challenge genuineness of the sealing of the article or its depositing may create any doubt in my mind. On the contrary Moharrir/H.C. Sikander Hayat had taken all precautions to avoid any tampering with the material. This ground raised by the learned counsel for the appellant hence fails.
19. I have gone through the evidence of the material witnesses Rana Khadim Hussain, Tariq Mustafa and Muhammad Aslam. In their evidence, minor, insignificant and feeble contradictions, variations and impurities were pointed out by the learned counsel for the appellant. I do not fmd it worth even to mention herein. However, it may be observed that the abovesaid witnesses have fully proved the recovery of contraband article from the appellant. Their evidence is confidence inspiring. Thus, the learned trial Judge has rightly relied upon the same. Sample of the recovered article was sent to the Chemical Examiner, whose report is in positive. The plea of false implication at the instance of one Nafees has not been substantiated by the appellant. Even otherwise it appears to be afterthought and false. Hence no reliance can be based on defence witnesses. The learned trial Judge has assessed the evidence of prosecution and defence properly. There appears no defect therein. In such view of the facts no case is made out calling for interference of this Court in appeal.
The appeal as such stands dismissed. However, the sentence awarded to the appellant appears to be severe. The appellant is said to be body builder, a young man and a cloth merchant by profession. The use of heroin in club at the instance of Nafees and other members might have induced him in drug trafficking in order to earn easy money. To me it appears to be mitigating circumstance which calls imposition of lesser sentence. I am, therefore, inclined to reduce the sentence from ten years' R.I., to five years' R.I. Fine from Rs,20,000 to Rs,10,000 or in default to suffer R.I. For one year more and sentence of stripes is reduced from twenty stripes to five stripes. The benefit of section 382-B, Cr.P.C. Extended by the learned trial Judge in favour of the appellant, however, stands intact. With this modification in the sentence the appeal is disposed of.
Sentence reduced.