PLJ 2022 Cr.C. (Note) 14
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 29--Section 29 of Control of Narcotic Substances Act, 1997 which provides that once prosecution is able to bring on record evidence to discharge initial onus of proof then burden shifts upon accused to prove otherwise. [Para 12] A
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of charas--Report of (PFSA) was also tendered in evidence which confirms nature of recovered substance--Acquittal of co-accused on basis of same set of witnesses would have no effect regarding conviction of present appellant as no recovery was effected from his physical possession--There is no legal prohibition under law for a police officer to be complainant if he is witness to commission of an offence and also to be an investigating officer as long as it does not in any way prejudice accused person--Appellant is sole breadwinner of his family that there are no cases of similar nature registered against him at police station and this was his first conviction--Appellant suffered rigours of trial for a period of above three years--Appeal dismissed. [Para 12, 13 & 14] B, D & E
2002 SCMR 1141, PLD 1997 SC 408 and PLD 2017 SC 671.
Prejudice--
----When no prejudice is cause to accused then functioning of complainant in his dual capacity as an investigating officer is neither illegal nor unlawful. [Para 13] C
PLD 1997 SC 408.
Mr. Sajjad Hassan Khosa, Advocate for Appellant.
Mr. Muhammad Ali Shahab, Deputy Prosecutor General for State.
Date of hearing: 5.11.2018.
PLJ 2022 Cr.C. (Note) 14
[Lahore High Court, Multan Bench]
Present: Sardar Ahmed Naeem and Sadiq Mahmud Khurram, JJ.
ABDUL MAJEED--Appellant
versus
STATE etc--Respondents
Crl. A. No. 379 of 2017, decided on 5.11.2018.
Judgment
Sadiq Mahmud Khurram, J.--The appellant namely Abdul Majeed son of Sharif-ud-Din, Caste Rehmani R/O street No. 5 Tariq Abad, Multan has challenged the judgment dated 4th of May, 2017 passed by learned Addl. Sessions Judge, Multan whereby the appellant was convicted and sentenced for offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 to rigorous imprisonment for six years with fine of Rs. 30000/-. The appellant was also directed to further undergo simple imprisonment for a period of six months in case of default of payment of fine. The appellant was extended the benefit provided under Section 382 (b) of the Code of Criminal Procedure, 1898-.The co-accused of the appellant namely Islam alias Islam-ud-Din son of Sharf-ud-Din caste Rehmani R/O street No. 5 Tariq Abad, Multan, who was also tried along with the appellant, was however acquitted.
2. Precisely the facts necessary, as divulged in the statement of of Sarfraz Hussain, SI (PW-3) are as under:
"That on 11.08.2014, I was posted at P.S. BZ as SI. On the same day, I alongwith Ghulam Murtaza ASI, Muhammad Azher 1087/C, Allah Ditta 3741/C, Muhammad Riaz 2614/C was present at Faiz Town on patrolling on official Vehicle No. 6512/MLL driven by Safdar Hussain 4439/C. In the meanwhile, a person came on foot from Tariq Abad side. On seeing police party, he tried to take turn. On being suspect, he was chased and apprehended with the help of other above mentioned police officials who disclosed his name Abdul Majeed son of Sharf-ud-Din, accused present in the Court. On his personal search, polythin shopper was recovered from right side pocket of the accused which contained heroin, which on weighing was found 1120 grams. Out of the recovered heroin, 01 grams was separated and made into sealed parcel with the Mark-SH. The remaining case property heroin P-1 was also sealed. Both were taken into possession. On further search of the accused, Rs. 1500/- with denomination of 15 currency note, of Rs. 20/-P-2/1-15 and 120 currency notes of Rs.10/- P-3/1-120 were also recovered from the front pocket of the accused. All the above said articles were taken into possession vide recovery memo Exh. P-B which is in my hand and bears my signatures Exh. P-B/1. I also obtained signatures of Gulam Murtaza ASI and Muhammad Azher 1087/C on the recovery memo Exh. P-B. The accused present in the Court further disclosed that he deals in business of narcotics for his real brother Islam son of Sharf-ud-Din. The said recovered heroin is also belong to said Islam. I drafted the complaint Exh. P-C which bears my signature Exh. P-C/1 and sent the same for registration of case at police station through Muhammad Riaz 2654/C. Thereafter, investigation of this case was also entrusted to me by the SHO. I received the police file from Muhammad Riaz 2654/C. I prepared site-plan of the occurrence Exh. P-D which bears my signatures Exh. P-D/1. I recorded the statements of witnesses namely Ghulam Murtaza ASI and Muhammad Azher 1087/C under Section 161 of Cr.P.C. I also interrogated the accused person at the spot. On the same day, I handed over the case property P-1.P-2 and P-3 to the Moharrir and put the accused in police lock up. On 12.8.2014, obtained judicial remand of accused person. On 13.8.2014, the co-accused person namely Islam alias Islam-ud-Din son of Sharf-ud-Din present in the Court was arrested by Talib Hussain SI in case FIR No. 567/2014 dated 13.8.2014, under Section 9-C of CNSA. I also interrogated the accused namely Islam and found him guilty. On 10.09.2014, I also joined Nazar Hussain 1656/HC, and Sagheer Ahmed Shah 528/C in the investigation and receded their statements under Section 161 of Cr.P.C. On 26.9.2014, I also obtained the judicial remand of accused Islam. Copy of the judicial remand of accused is available in judicial file as Exh. P-E. The accused Islam was also found guilty during my investigation. I submitted the report under Section 173 of Cr.P.C. forwarded by the SHO in the Court".
3. On the above stated facts FIR No. 564/2014 (Exh.PA/1) dated 11.8.2014 the was registered at Police Station BZ, Multan.
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant along with his co-accused were sent to face trial. The learned trial Court framed the charge against both the accused on 19.11.2014 under Section 9(c) of the Control of Narcotic Substances Act, 1997. The appellant and his co-accused pleaded not guilty and claimed trial.
5. In order to prove the facts in issue the prosecution examined as many as four witnesses in total. Sagheer Hussain, 828-C was examined as PW-1 and stated that he took the sealed parcel to the office of Punjab Forensic Science Agency (hereinafter referred as PFSA) Lahore on 10.9.2014. Nazar Hussain 1566 HC appeared as
PW-2 and he stated that he chalked out the formal FIR No. 564/2014 (Exh. PA/1). This PW further stated that he received two sealed parcel on 11.8.2014 from Sarfraz Hussain PW-3 and kept them in safe custody. Out of these two parcels one sealed parcel was handed over to Sagheer Hussain PW-1 on 10.9.2014 for its onward transmission to the (PFSL) Lahore by him (PW-2). Sarfraz Hussain SI appeared as PW-3 whereas Muhammad Azhar 1087-C appeared as PW-4 who narrated the facts leading to the recovery of heroin weighing 1120 grams. After recording of the prosecution witnesses learned ADPP gave up PW Ghulam Murtaza as being unnecessary and tendered in evidence the report of PFSA as Exh. PE and closed the prosecution evidence.
6. After closing of prosecution evidence the statement of appellant was recorded under Section 342 of Code of Criminal Procedure, 1898 and the appellant pleaded his innocence and in reply to Question No. 6 stated as follows:
"There was litigation between the local police and my family members and as a result of that litigation, the local police involved me and my brother/co-accused falsely in this case. The PWs are subordinate of PW-3 who is I.O. of this case and on the asking of PW-3, the remaining PWs deposed against me".
7. The appellant however neither led any evidence in defense nor opted to appear in terms of Section 340(2) of the Code of Criminal Procedure.
8. After completion of evidence and hearing both the parties the learned trial Court held the appellant guilty of offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 whereas the co-accused namely Islam alias Islam-ud-Din was acquitted.
9. Learned counsel for the appellant submitted that the prosecution has failed miserably to prove the case against the appellant. He added that when on the basis of same evidence accused Islam alias Islam-ud-Din was acquitted then there was no justification for the trial Court to convict the appellant. Learned counsel further argued that Sarfraz Hussain SI PW-3 acted in a role of a witness as well as the investigating officer which militates against the dictates of law. Learned counsel also stated that nothing was recovered from the appellant however after these arguments the learned counsel has conceded to the fact that the conviction is correct, however he pleads for the reduction in sentence of the appellant.
10. On the other hand learned Deputy Prosecutor General appearing on behalf of the State submitted that the prosecution has proved the facts in issue by producing admissible and relevant evidence. He further submitted that all the witnesses have corroborated each other. With respect to the submission of the learned counsel of the appellant regarding the reduction of sentence, learned Deputy Prosecutor General has considered fairly and says that he would have no objection with regard to the same.
11. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record.
12. In order to prove the facts in issue the prosecution produced four witnesses, however Sarfraz Hussain PW-3 and Muhammad Azhar 108-C, PW-4 are of the utmost significance with respect to prove the recovery of 1120 grams of heroin. While going through the statement of these witnesses we have examined that the recovered 1120 grams of heroin was duly exhibited in their evidence as P-1 which was taken into possession through recovery memo Exh. PB. Both the witnesses have given each and every detail of the recovery proceedings and were cross-examined at length. Nothing fruitful cropped up during the said cross-examination. The tenor of cross-examination also reveals that the facts in issue were not being challenged seriously. We are also conscious of Section 29 of the Control of Narcotic Substances Act, 1997 which provides that once the prosecution is able to bring on record evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise. The report of (PFSA) Exh.PE was also tendered in evidence which confirms the nature of recovered substance. The acquittal of co-accused namely Islam alias Islam-ud-Din on the basis of same set of witnesses would have no effect regarding the conviction of the present appellant as no recovery was effected from his physical possession. Reliance in-this regard can be placed on Muhammad Zubair and another vs. The State (2002 SCMR 1141).
13. With regard to the objection of the learned counsel for the appellant that the Investigating Officer was the complainant also, we are of the considered view that when no prejudice is cause to the accused then functioning of the complainant in his dual capacity as an investigating officer is neither illegal nor unlawful. In the binding decision of the august Supreme Court of Pakistan reported as State through Advocate General, Sindh vs. Bashir and others. (PLD 1997 Supreme Court 408). It has been held that there is no legal prohibition under law for a police officer to be complainant if he is witness to the commission of an offence and also to be an investigating officer as long as it does not in any way prejudice the accused person.
14. In view of the material available on the record we are of the considered view that the prosecution has successfully proved this case beyond shadow of doubt by producing relevant and admissible evidence. Therefore we while maintaining the conviction of the appellant recorded by the learned Additional Sessions Judge, Multan vide judgment dated 4th of May, 2018, dismiss the instant appeal. We are, however, of the considered view that in this particular case there are some special features relevant to the matters of sentence. We have observed that the appellant is the sole breadwinner of his family that there are no cases of similar nature registered against him at the police station and this was his first conviction. We have also noticed that the appellant suffered the rigours of trial for a period of about three years. We have also observed that it seems likely that the appellant would have mend is ways in all these years. Hence, being guided by the binding decision of the Supreme Court in case. State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force vs. Mujahid Naseem Lodhi (PLD 2017 Supreme Court 671) we reduce the sentence of Rigorous imprisonment of six years to that of already undergone. However, the sentence of fine of Rs. 30000/- shall remain intact but we reduce the period the appellant has to undergo in case of default of payment of fine from six months to one month simple imprisonment. The appeal is disposed of, accordingly.
(A.A.K.) Appeal dismissed
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