' Appellant has assailed a judgment, dated 8-4-1997 delivered by Magistrate Section 30, Rawalpindi, whereby he has been convicted under Article.
4, Prohibition (Enforcement of Hadd) Order, 1979 and has been sentenced to R.I. For 3 years, 10 stripes and fine of Rs,10,000 and in default of payment further S.I. For 3 months. Benefit of section 382, Cr.P.C. Has also been granted.
2. The story of prosecution in brief is that on 23-9-1993 at about 6-30 a.m. One Muhammad Sharif Toor (P.W.5) field Investigating Officer, Police Station Narcotics, Rawalpindi was on patrol duty alongwith P.C. Muhammad Yousaf (P.W.4), P.C. Manzoor Hussain (P.W.3), P.C. Muhammad Nawaz (P.W.2), P.C. Mukhtar Ahmed and P.C. Mujahid Hussain Shah. He received a secret information near Jamia Masjid Road Purana Qilla, Rawalpindi that one Nazar Dastgir alias Kaka was selling heroin in a street opposite his house. On this information a raiding party consisting of the abovementioned personnel of the said police station was arranged. The indicated person was found at the indicated place out of his house and on search heroin was recovered from waxed envelopes and wrapped in paper concealed underneath the Shalwar worn by him. Entire heroin was took out of the said envelopes and Purries of papers and was weighed at the spot which turned out to be 50 grams.
Out of the recovered heroin 12 grams were separated and parcel was prepared with a seal containing the mark M.S.T. 1/1 and was sent for to the Chemical Examiner. On further search of the said accused/appellant, from his inner shirt, watak heroin and from the right side pocket Rs,500 were also recovered. Resultingly F.I.R. No,37 Police Station Narcotics District Rawalpindi was lodged on 23-9-1993 at 9-25 a.m. Through complainant Muhammad Sharif Toor (P.W.5) and was recorded by Javid IqbaI, S.-I.
3. Appellant was charged under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 hereafter referred to as the said Ordinance to which charge the appellant did not plead guilty.
Prosecution examined 5 witnesses. Allah Bukhan, A.S.-I. (P.W.1) proved receipt of two sealed parcels on 23-9-1993 and he kept it under his custody at the police station. Two days later on 25-9-1993 the said parcels were sent by him to the Chemical Examiner. Appellant was given a chance to cross him but no cross was made. Muhammad Nawaz (P.W.2) constable has proved that on 25-9- 1993 he received the parcels from Allah Bukhsh (P.W.5) and deposited the same in the office of the Chemical Examiner Rawalpindi. The report of Chemical Examiner, dated 27th September, 1993 indicates that a docket was received on 25-9-1993 from Muhammad Nawaz of P.N.C.B. This report of Chemical Examiner is about the 12 grams of heroin sent in packet and is positive. Chance to cross the P.W. Was given by the Trial Court to the appellant but he did not avail of this chance.
Manzoor Hussain Constable (P.W.3) has proved the recovery of the 50 grams in his presence from the appellant. During cross he has denied that while the appellant was sleeping in his house, he was arrested. Muhammad Yousaf Constable (P.W.4) has also proved the recovery, and separation of 12 grams of heroin from the recovered material and sealing of the same in the parcel in his presence. During cross he has denied the suggestion that the appellant was arrested while he was sleeping in his house. Muhammad Sharif Toor (P.W.5) F.I.O. And Investigating Officer has proved the case as narrated in the F.I.R. And challan. A chance to cross was given to the appellant which was not availed of by him. Questions were put to this witness by the Trial Court to which he has replied that at the place of occurrence there were many people available and it was tried by him to procure an independent witness from many of those available who were residents of the locality.
None was ready to become witness due to the fear of the appellant who was a habitual vendor of narcotics in the locality.
' In his statement under section 342, Cr.P.C. There is simple denial to all the questions. To a question as to why this case was registered against him, the reply is that he was sleeping in his house and his mother had gone to bring some milk after having opened the door. Finding the door open, these personnel of narcotics entered the house, chained his hands and then awakened him. Then they searched the room of his sister and F.I.O. Muhammad Sharif Toor (P.W.5) took out Rs,23,000 from an Almera of the room belonging to his sister and also he took out ornaments belonging to her. From his pocket, only Rs,500 were taken out. Later on the ornaments were returned but an American locket was not returned. Although he has affirmed that he will produce defence and also will examine himself on oath, but it appears that he has not done so.
4. I have heard the learned counsel for appellant and State Counsel for the appellant has contended that in spite of the thickly populated area, no witness of locality has been joined as a witness of recovery; that the appellant was not properly defended as even the star witnesses have not been crossed; that Manzoor Hussain (P.W.3) does not make reference to the recovery of Rs,500 from the personal search of the appellant; that since the prior secret information was received by the Investigating Officer, therefore, he should have procured independent witnesses. The counsel for State has contended that the chance of cross was given to the appellant but mostly he has himself not availed of that chance; that to a Court question Muhammad Sharif Toor (P.W.5) has already explained as to why witnesses could not be procured from locality in spite of their availability; that there is no evidence or even allegation of enmity with the prosecution and that the appellant has himself not produced witnesses in his defence and he has not come forward to examine himself on oath. He has not produced any evidence to prove that he was not arrested from the street.
5. It is an established principle that the witnesses belonging to the enforcing Agencies are as good witnesses as any witness from the public. The recovery of 50 grams of heroin from the appellant has been proved beyond reasonable doubts by Muhammad Sharif Toor (P.W.5), the complainant, Muhammad NawaL (P.W.2) and Manzoor Hussain (P.W.3). Other P.Ws. Have proved the custody of the samples of heroin and proper despatch within two days to the Chemical Examiner Rawalpindi who has certified that parcel contained 12 grams of heroin which can be used to cause intoxication. In case prosecution witnesses have not been crossed, it does not dislodge the story of the prosecution. Appellant has himself avoided to produce any witness in his defence or even to examine himself on oath. No evidence or allegation of enmity has been brought on the record. In case Manzoor Hussain (P.W.5) is not making C a reference to the recovery of Rs,500 from the personal search, it is not that type of error which can be considered as substantial in nature. The prosecution witnesses are not supposed to give all the details and remain repeating the same details in the Trial Court in a parrot like manner. It has been contended that the appellant is a poor person and the recovery is of lesser quantity. The appellant has already been punished for R.I. For 3 years whereas maximum punishment is imprisonment for life and minimum is that of not less than 2 years. In this case, the appellant appears to be habitual vendor of heroin in the streets of Rawalpindi City. Consequently, the impugned judgment is upheld and appeal is dismissed.