PLJ 2023 Cr.C. (Note) 100
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ.,
ASAD ALI--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 398 of 2018, decided on 6.10.2021.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(b)--Conviction and sentence--Challenge to--Recovery of charas--It is difficult to believe that such contraband was planted to oblige superiors--All witnesses have remained firm and made consistent statements on material particulars and learned counsel for appellant has failed to point out any discrepancy worth name or contradiction in their statements--No ill-will or enmity has been proved on part of these witnesses for false implication--The recovery has been proved satisfactorily and omission to fulfill ingredients of Section 103, Cr.P.C. is not vital in view of Section 25 of Act--Prosecution has proved its case beyond shadow of doubt--In complaint and in prosecution evidence it is nowhere mentioned that contraband charas was weighed with wrapper or without wrapper, in this way, if Contraband charas was weighed along with wrapping material, it cannot be ruled out that actual quantity recovered from appellant was around 1000 grams or less, therefore, case of appellant would fall within purview of Section 9(b) of Act ibid--Trial Court has rightly convicted appellant under Section 9(b) of Control of Narcotic Substances Act, 1997--So far as quantum of sentence is concerned, appellant was arrested in this case and at time of hiss conviction by trial Court he was in custody--His sentence Was Suspended by High Court hence he has already served out more than two years and six months--He also faced agony Of protracted trial and pendency of this appeal. [Para 8] A & B
Raja Muhammad Ali, Advocate/defence counsel for Appellant.
Mr. Sajjad Hussain Bhatti, D.P.G. for State.
Date of hearing 6.10.2021.
Judgment
Raja Shahid Mehmood Abbasi, J.--This appeal is directed against the judgment dated 02.03.2018 rendered by a learned Additional Session Judge, Rawalpindi/Camp at Kahuta passed in case F.I.R No. 400, dated 17.11.2015 in respect of offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Kahuta whereby, Asad Ali appellant was convicted under Section 9(b) of the Act and sentenced to rigorous imprisonment for three years with fine of Rs. 20,000/-, in default whereof, to further undergo simple imprisonment for one month. However, the benefit of Section 382-B, Cr.P.C. was extended in his favour.
2. Briefly stated, the facts of the case are that FIR (Ex.PD) was registered on the basis of complaint (Ex.PC) with the allegation that on 17.11.2017 at 02:05 pm, Muhammad Yaqoob, ASI/complainant (PW.1) along with other police contingent was present at Pinjar Chowk in connection with patrolling duty where on suspicion the present appellant was apprehended and upon his personal search charas littar numa (10 pieces) weighing 1035 grams was recovered. 06/06 gram was separated from each littar and sealed into parcels for chemical analysis. Hence, the crime report.
3. After formal investigation, report under Section 173 of the Criminal Procedure Code, 1898 was prepared and submitted before the trial Court. The appellant was sent to face the trial. After delivering the copies of the documents in terms of Section 265-C of the Criminal Procedure Code, 1898, the trial Court framed the charge against the appellant on 26.01.2016, to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined four witnesses to bring home the guilt of accused. The prosecution gave up Nadir Khan Constable PW being unnecessary and after tendering in evidence report of the Punjab Forensic Science Agency, Lahore (Ex.PF) closed its evidence.
4. The statement of appellant, was recorded under Section 342, Cr.P.C. wherein, in reply to the question “why the instant case registered against you and why the PWs deposed against you,” he stated as follows:
“I was arrested by the police from the outside of Court of Mr. Tahir Abbas Sipra, learned ASJ, Rawalpindi and fake recovery of charas was planted upon me on the insistence of one Babar due to enmity.”
He neither opted to make statement on oath as required under Section 340(2), Cr.P.C. nor produced any evidence in his defence.
5. After completion of evidence from both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted and sentenced him as mentioned in preceding paragraph
No. 1 above.
6. At the very outset learned defence counsel for the appellant contends that the appellant was apprehended while in possession of contraband charas littar numa weighing 1035 grams wrapped in a polythene shopping bag and it is nowhere mentioned that the same was weighed with or without the wrapping material, therefore, prays for reduction of the sentence already undergone by him.
7. On the other hand, learned Deputy Prosecutor General opposed the contentions raised by the learned defence counsel for the appellant and supported the impugned judgment.
8. We have considered the matter from all angles and we are satisfied that the appellant was found involved in possessing charas littar numa mentioned above. During analysis of the sample, sent to the PFSA, Lahore, it was confirmed vide report (Ex.PF) that the recovered substance was Charas. Two witnesses namely Muhammad Yaqoob, ASI (PW.1) and Fiaz Hussain 2781/C (PW.3) have been produced by the prosecution to establish the factum of apprehension of the appellant and recovery of contraband Charas from his possession. Regarding the recovery, suffice it to say that the deposition of Muhammad Yaqoob, ASI complainant (PW.1) gaining strength from the statement of Fiaz Hussain, Constable (PW.3) can safely be depended Upon as he is not only a responsible officer but has supported the prosecution version in a straightforward manner. Both these witnesses were subjected to lengthy and searching cross-examination in order to shatter the prosecution version but nothing beneficial to appellant Could come out of their mouth. During the investigation of carried by Muhammad Akram, SI (PW.4) the appellant was found fully involved in this case. It is difficult to believe that such contraband was planted to oblige the superiors. It may be remarked here that all the witnesses have remained firm and made consistent statements on material particulars and learned counsel for the appellant has failed to point out any discrepancy worth the name or contradiction in their statements. No ill-will or enmity has been proved on the part of these witnesses for false implication. The recovery has been proved satisfactorily and omission to fulfill the ingredients of Section 103, Cr.P.C. is not vital in view of Section 25 of the Act. In this way, the prosecution has proved its case beyond shadow of doubt. However, we have observed that in the complaint (Ex.PC) and in the prosecution evidence it is nowhere mentioned that the contraband charas was weighed with wrapper or without wrapper, in this way, if the contraband charas was weighed along with wrapping material, it cannot be ruled out that the actual quantity recovered from the appellant was around 1000 grams or less, therefore, the case of the appellant would fall within the purview of Section 9(b) of the Act ibid. Hence, the learned trial Court has rightly convicted the appellant under Section 9(b) of the Control of Narcotic Substances Act, 1997. So far as the quantum of sentence is concerned, we have observed that the appellant was arrested in this case on 17.11.2015 and at the time of his conviction by the learned trial Court he was in custody. His sentence was suspended by this Court on 21.05.2018, hence he has already served out more than two years and six months. He also faced the agony of protracted trial and pendency of this appeal. Hence, keeping in view the schedule provided in the case of “Ghulam Murtaza and another V. The State” (PLD 2009 Lahore 362), we reduce the sentence awarded to the appellant to one undergone by him which includes the Sentence of fine. He is on bail, his surety is discharged.
9. With the modification in the conviction and sentence as indicated above, the appeal is hereby dismissed. The disposal of the case property shall be as ordered by the learned Trial Court.
(A.A.K.) Appeal dismissed
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