' This appeal filed by Abdul Malik son of Kalander Khan, resident of Saiden, P.O. Jatyal, Police Station Hazro, District Attock, is directed against the judgment, dated 29-11-1995 passed by the learned Senior Civil Judge/Magistrate Section 30, Attock, whereby he has convicted him under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and sentenced him to seven years' R. I . , whipping numbering ten stripes and a' fine of Rs,2,000 or in default of payment of fine further one month's R.I.
2. Briefly stated it is the case of prosecution as narrated in Murasila Exh.P.B. That Raees Shah, F.I.O., who on 12-7-1991 was present at Hattian Bus Stop along with other police officials, received spy information that the appellant/accused was selling narcotics in front of his house. On receipt of this information, he arranged the raiding party and proceeded to Saiden Village and apprehended the appellant/accused who on seeing them was trying to escape away. He recovered 1,000 grams heroin wrapped in a shopping bag from his possession. He separated 10 grams from the same and sealed it into a parcel. He made a separate sealed parcel of the remaining contraband and secured it vide a memo. He also recovered Rs,200 from his pocket and took the same into possession vide the Memo. After necessary investigation, he challaned the appellant to face the trial.
3. At the trial, the prosecution examined six witnesses in all.
43.W.1 Shaukat Hussain Shah, A.S.-I., was a member of the raiding party and was a marginal witness to the recovery Memo. Exh.P.A. P.W.2 is Manzoor-ul-Haq, Constable. He was also a member of the raiding party and was a witness to the recovery Memo. Exh.P.A. P.W.3 is Muhammad Bashir, S.-I. He recorded formal F.I.R. Exh.P.B. The basis of Murasila Exh.P.B./1. P.W.4 is Sakhi Sarwar, Constable. He kept the sealed parcels in Malkhana and on 14-7-1991 sent the sample parcel to the office of the Chemical Examiner through Abbas Ali, Constable, P.W.5, who transmitted the same to the office of the Chemical Examiner on the same day intact. P.W.6 is Shah Raees, F.I.O. He is the complainant, who arranged the raiding party and apprehended the appellant/accused, effected recovery of contraband from him and also investigated the case. Report of the Chemical Examiner Exh.P.D. Is positive
4. The appellant/accused made a statement under section 342, Cr.P.C. Wherein he denied the allegation and pleaded innocence. He stated that he has been falsely implicated in this case. He also made a statement on oath under section 340(2), Cr.P.C. In the following words:- {{URDU TEXT}} ' He also produced Sher Muhammad D.W.2 in his defence.
5. I have heard learned counsel for the parties and have perused the record with their assistance.
6. It transpires from the record that the case of prosecution mainly rests on the statements of P.W.1 Shaukat Hussain Shah, P.W.2 Manzoor-ul-Haq and P.W.6 Shah Raees. P.W.1 and P.W.2 are the recovery witnesses. They have also signed the recovery Memo. As marginal witnesses. They have fully supported the case of prosecution as reiterated by P.W.6. Their statements are consistent in material particulars and do not suffer from any infirmity. They have been subjected to cross- examination but nothing fruitful to the defence has been adduced from their statements. Although, they are police witnesses, their evidence cannot be brushed aside merely on this ground. There is nothing on record to show that they pore any enmity, or grudge against the appellant/accused.
Non-production of the witness from the public is no illegality in the circumstances of the case as the recovery has been effected from personal possession of the appellant. In cross-examination, P.W.1 Shaukat Hussain Shah, has clarified that they had asked the persons who had gathered at the place of occurrence to become witnesses in this case but they had refused to do so. It is very obvious that in case of narcotics, people normally do not come forward to become witnesses as they have many apprehensions about their life, honour and property at the hands of narcotics Mafia. The appellant/accused has asserted that he has been falsely implicated in the case but he has not been able to substantiate the reason why on earth he was picked up and falsely implicated in this case by planting a huge quantity of heroin against him. The statement of defence witness No,2 is also of no avail in this connection as he himself has admitted that he was not present at the time when the appellant/accused was arrested. He has also admitted that he had not appeared in defence of the appellant before the raiding party. In the circumstances, I feel that the case of prosecution against the appellant/accused has been established to the hilt.
7. Keeping in view however, the fact that neither any scale has been recovered from possession of the appellant nor there is any other evidence to conclude that he was actually a notorious narcotics peddler and the fact that the quantity recovered from his possession is 1,000 grams heroin, I feel inclined to reduce the sentence of his imprisonment to five years' R.I. The sentences of whipping and fine as awarded by the learned trial Court are however, maintained. The benefit of section 382-B, Cr.P.C. Is also extended to him. With this modification in the sentence, the appeal is dismissed.
Sentence reduced.