' MIAN MUHAMMAD JAHANGIER; J.--- By this judgment Criminal Appeal No,1271 of 2002 filed by Naimat Ullah Khan son of Habib Ullah, caste Pathan, resident of Mohllah Sharif Khel, Daud District Mianwali, is being disposed of which has emerged from the judgment passed by Mr. Tahir Pervez, learned Additional Sessions Judge, Mianwali, dated 1-7-2002 whereby the appellant was convicted and sentenced to three years' R.I. With a fine of Rs,3,000 and in default thereof to suffer further simple imprisonment for three months under. Section 9-B of the Control of Narcotic Substances Act, 1997 and his co-accused Habib Ullah alias Shamban Wala was convicted and sentenced to suffer three months' rigorous imprisonment with a fine of Rs,500 and in default thereof to suffer further simple imprisonment for fifteen days under section 9-A of the Act (ibid).
Both were given the benefit of section 382-B, of the Code of Criminal Procedure.
2. The facts of the prosecution case were disclosed by Ghulam Shabbir, S.-I. In his complaint (Exh.P.A.) drafted at about 10-55 a.m. On 9-6-2000 in the area of Mohallah Sharif Khel Daud Khel on basis of which formal F.I.R. Bearing No,85 (Exh.P.A./1) was drafted at Police Station Daud Khel, District Mianwali.
' The allegation against the appellant was that on 9-6-2000 at 9-20 a.m. When the raid was conducted by the police party headed by Ghulam Shabbir, S.-I. In the area of Mohallah Sharif Khel, he and his companion Habib Ullah were found sitting at an open space near to their houses while having a polythene bag of. White colour in the hand of Habib Ullah and another polythene bag of black colour in the hand of Naimatullah, however, they fled away on seeing the police party, but the polythene bags were fallen on the ground. They were chased by the police party but they could not be apprehended due to the Abadi-of Daud Khel. Anyhow, on search of polythene bag of Habibullah one knife and heroin 25 grams in weight were recovered while from the polythene bag of black colour of Naimatullah Charas 560 grams in weight was recovered.
' Heroin and Charas were taken into possession, out of which two grams heroin and ten grams of Charas were separated for chemical analysis and made into sealed parcel. Complaint Exh.P.A. Was sent to the police station for registration of the case.
' Statements of the prosecution witnesses were recorded and after completion of necessary investigation the challan was submitted in the Court.
3. Ghulam Shabbir, S.-I. (P.W.5) repeated almost the contents of his complaint (Exh.P.A.) and 'also explained some investigation conducted by him in this case. Mukhtar A.S.-I. (P.W.2) deposed about the process of conducting the raid and recovery of the narcotics from the appellant and his companion. Ghulam Muhammad, Inspector (P.W.3) deposed about the conduct of investigation by him. Hameedullah, Moharrar/Head Constable (P.W.1) deposed about drafting of the formal F.I.R.
(Exh.P.A./1) and custody of four sealed parcels in the Malkhana and delivery of two sealed parcels to the office of Chemical Examiner through Abdul Rehman F.C. No,672. Said Abdul Rehman F.C.
(P.W.4) deposed about the deposit of sealed parcel in the Office of Chemical Examiner.
' The reports of Chemical Examiner Exh.P.E. And Exh.P.E./1 were tendered as documentary evidence.
4. At the close of the prosecution case the statements of the appellant and his co-accused were recorded under section 342, Cr.P.C. They denied the allegation as levelled by the prosecution and professed about their innocence. Naimatullah appellant advanced this version that he and his father have enmity with the police officials due to the quarrel took place prior to this occurrence, therefore, he was falsely implicated in this case because of grudge and that the police employees deposed against him just to show their efficiency and pleasure to their superior such as the S.H.O.
5. At the close of the trial the learned trial Court found that the prosecution had proved its case beyond reasonable shadow of doubt, therefore, the appellant and his companion were convicted and sentenced as mentioned above.
6. Learned counsel for the-appellant argued that the prosecution version itself is that the appellant was not arrested at the spot and that the Charas had been taken into possession by the police employees from the earth, therefore, there is no identification that the polythene bag of black colour was actually thrown on the ground by the appellant, in other words, there is no direct recovery from the appellant and, even otherwise, the alleged recovery was made from a public place, therefore, it is worth no reliance. The learned counsel further argued that if the prosecution evidence is examined, it would appear to be inconsistent and unreliable whereas the defence version was strong but the learned trial Court wrongly relied upon the fake evidence of the prosecution and convicted and sentenced the appellant. Last of all he argued that the appellant is a young boy aged about 24 years and also a student, he has suffered enough, therefore, if at all, the prosecution case is believed to be true then the sentence passed by the learned trial Court by taking a lenient view may be converted into already undergone.
7. On the other hand the learned State Counsel opposed the arguments advanced by the learned counsel for the appellant and submitted that the prosecution case was proved to the hilt, therefore, the appellant was rightly convicted and sentenced in a case of narcotics.
8. The arguments advanced by the learned counsel for the parties have been taken into consideration. Certainly there is a question involved with regard to the identification of the appellant and his co-accused at the spot but this proposition has been resolved by Ghulam Shabbir, S.-I. (P.W.5) the complainant, when while facing the test of cross-examination he submitted that the accused were known at the time of raid which means that there was no confusion about the identification of the appellant and his co-accused at the time of raid. This witness was not suggested that the appellant and his companion were known to him at the time of raid. Even otherwise, the raid was conducted at the appellant after constituting a raiding party on the basis of a secret information.
' The raid was conducted in the daylight, therefore, it could be seen that the appellant was holding the polythene bag at the time of throwing the same on the ground.
' Mumtaz, A.S.-I. (P.W.2) was cross-examined at length but his statement was not proved to be contradictory with the statement of Ghulam. Shabbir, S.-I. (P.W.5). Moreover, there was an omission on the part of the learned defence counsel in connection with the material aspect of the prosecution case when Ghulam Shabbir (P.W.5) was subjected to cross-examination. Actually the statements of both these recovery witnesses were consistent to each other and their statements force to believe that there was a truth in the prosecution version. The report of Chemical Examiner Exh.P.E. Provided blood to be prosecution story as being a corroborative piece of evidence. Whereas the defence version is an afterthought as the appellant failed to convince on the question of enmity. He failed to provide the details of his enmity with the police. Therefore, it was not sufficient to say that he has been involved in this case just to please the high-ups in the heirarcy of police, such as Station House Officer of the police station concerned. This defence version was devoid of any force, therefore, it was rightly rejected by the learned trial Court.
10. Despite the above said situation, we see that the point for examination is as to whether there is any circumstance on the record to take a lenient view in case of sentence. It appears from the report of Superintendent, Central Jail, Mianwali placed on the record that the appellant has already undergone sufficient period of his sentence and the expected date of his release is 3-5-2005 if the amount of fine as mentioned above is paid.
11. Therefore, in view of above circumstances the judgment passed by the learned trial Court dated 1-7-2002 is maintained, however, while taking the lenient view the sentence passed by the learned trial Court is reduced to already undergone, but the amount of fine is maintained.
' The appeal is disposed of accordingly.