GHULAM ABBAS alias BASU vs THE STATE
This criminal appeal arises from a judgment of the Lahore High Court upholding the conviction of the appellant under section 9-B of the Control of Narcotic Substances Act, 1997, for the possession of 500 grams of Charas, sentencing him to rigorous imprisonment for three years and six months along with a fine. The core legal questions involved the effect of non-production of the police daily diary, the applicability of section 103 of the Code of Criminal Procedure, 1898 in narcotic cases, and the implications of delay in sending the substance for chemical analysis and minor contradictions in witness statements. The Court held that the prosecution successfully proved its case beyond a reasonable doubt, noting that section 25 of the Control of Narcotic Substances Act, 1997 excludes section 103 of the Code of Criminal Procedure, 1898, and that minor discrepancies and brief delays without proof of tampering do not vitiate a conviction. The key principle laid down is that recovery of narcotics is duly established when police testimony is unshaken, case property is produced, and chemical reports are positive, unaffected by the exclusion of section 103, Cr.P.C.
- Whether the non-production of the daily diary of a police officer is fatal to a prosecution case under the Control of Narcotic Substances Act, 1997?
- Does section 103 of the Code of Criminal Procedure, 1898 apply to search and recovery in narcotics cases?
- Does a delay of two days in sending a narcotic parcel for chemical analysis affect the prosecution case in the absence of evidence of tampering?
- Can trivial contradictions in the statements of recovery witnesses serve as a ground for setting aside a conviction?
- Section 9-B, Control of Narcotic Substances Act 1997
- Section 342, Code of Criminal Procedure 1898
- Section 103, Code of Criminal Procedure 1898
- Section 25, Control of Narcotic Substances Act 1997
' SARDAR MUHAMMAD ASLAM, J.---Ghulam Abbas alias Basu son of Mian Khan, has preferred this appeal questioning his conviction recorded under section 9-B of the Control of Narcotic Substances Act, 1997 and sentence to undergo rigorous imprisonment for three years and six months. He was also ordered to pay a fine of Rs.25,000, in default whereof to undergo imprisonment for one year vide judgment, dated 15-12-2004 in case F.I.R. No.330, dated 15-6-2004 registered under section 9-B of the Control of Narcotic Substances Act, 1997 at Police Station, Sadar, Gujrat.
2. Briefly, the prosecution case as per F.I.R. Is that on 15-6-2004 at 11-30 a.m. a police party headed by Muhammad Yousaf, S.-I./complainant apprehended a person coming from Adda side, who tried to run away, who later on disclosed his name as Ghulam Abbas. On his personal search Charas weighing 500-grams wrapped in polythene paper was recovered from his right pocket of shirt. The same was taken into possession vide recovery memo. Exh.PB/1, 10 grams out of the same separated for chemical analysis while remaining was taken as case property which was sealed in different parcels. On further search, pistol .30-bore was also recovered from the accused.
4(sic). After investigation, the police submitted challan before the Court. He was formally charged.
The prosecution examined as many as five witnesses.
6(sic). The appellant were examined under section 342, Cr.P.C. He denied the accusation and stated his involvement on account of his enmity with one Zubair, his co-villager. He lead evidence in defence.
7. We have heard the learned counsel for the parties at full length and peruse the record.
8. The appellant was apprehended and 500 grams Charas was recovered from his possession, P.W.1 and P.W.2 are the recovery witnesses. They unfolded the prosecution case of apprehending the appellant, effecting recovery from his person, weighing the recovered narcotics and preparation of two sealed parcels, one of 10 grams for its onward transmission to other of the remaining property. Their statements remained unshaken in cross-examination.
9. First contention of the learned counsel for the appellant that non-production of daily diary of the police officer is fatal to the prosecution case. He placed reliance on Dris v. The State (2001 YLR 3078 Karachi), Hakim Ali v. The State (2001 PCr.LJ 1865 Karachi) and Aijaz Ali v. The State (2001 YLR 1493).
We have considered the submissions of the learned counsel with reference to case-law cited by him. The case-law is A distinguishable and is applicable to its own peculiar facts. In the cited case, the case proper was not produced in the Court, which fact weighed predominately, recording acquittal. In the case in hand, the prosecution has fully proved the recovery by producing the same in Court which was exhibited. Chemical Report was found positive. The ground urged has no force, and is, thus, rejected.
10. Second contention of the learned counsel for the appellant is that non-compliance of provision of section 103, Cr.P.C. Will earn acquittal to appellant. He relied on A'i Hassan v. The State (PLD 2001 Karachi 369), Javed Akhtar v. The State (1998 PCr.LJ 1462 Lahore). The provision of section 103, Cr.P.0 has been specifically excluded by section 25 of the Control of Narcotic Substances Act, 1997. The view taken in the above cited case is no more in field in view of the observations of the Hon'ble Supreme Court of Pakistan in regard to application of provision of section 103, Cr.P.C. In the cases of narcotics. This contention, too is without force and merits rejection.
11. The third contention of the learned counsel, for sending parcel with delay with reference to Wahid Bux v. The State (2001 YLR 2958), has no bearing upon the fact of this case. The parcel in the precedent case was sent after a delay of more than nine days whereas in the instant case, the parcel was sent within a period of two days.
12. Delay, thus, will not affect the prosecution case in absence of any suggestion from the appellant about its having been tampered in any manner.
13. The next contention of the learned counsel was with regard to contradictions pointed out in the statements of P.W.1. And P.W.2, as the former stated that the appellant was coming from bazaar side to. Mandi whereas the latter stated that he was on his way to bazaar from Lorry Adda. This contradiction is trivial in nature. The evidence could not be rejected on such like discrepancies, which are about to occur, when statements are recorded after some period of time.
14. The evidence lead in defence is of no help to the appellant. D.W.1. Is real brother of appellant. He has not appeared before any official during investigation to vouchsafe innocence of appellant.
15. After considering the case from all angles, we are of the firm view that prosecution has proved its case beyond reasonable doubt.
16. For what has been discussed above, we don't find any merit in this appeal and while upholding the conviction and sentence of the appellant, dismiss the same.