HAMEED IQBAL vs THE STATE
This criminal appeal challenges the conviction and sentence imposed by the Additional Sessions Judge/Special Court for Control of Narcotic Substances Act, 1997, which found the appellant guilty of possessing one kilogram of opium under Section 9(b) of the Control of Narcotic Substances Act, 1997. The appellant was sentenced to two years of rigorous imprisonment and a fine. The core legal question was whether the prosecution successfully proved the recovery of narcotics beyond a reasonable doubt, given the appellant's defense that the case was fabricated due to a prior dispute with the police over money. The Court held that the prosecution witnesses, including police officials, provided consistent testimony that inspired confidence, and the Chemical Examiner's report confirmed the substance was opium. The Court rejected the appellant's unproven defense of malicious prosecution, noting the failure to report the alleged police misconduct to higher authorities. Consequently, the Court upheld the conviction but, exercising discretion based on the circumstances, reduced the sentence of imprisonment to the period already undergone, while maintaining the fine.
- Are police officials considered competent witnesses in narcotics cases?
- Does the failure of an accused to produce evidence in defense create an adverse presumption?
- Can an appellate court reduce a sentence of imprisonment to the period already undergone while maintaining a fine?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 342, Code of Criminal Procedure 1898
- Section 340(2), Code of Criminal Procedure 1898
' RUSTAM ALI MALIK, J.---This appeal is directed against the judgment, dated 22-7-2002 passed by the learned Additional Sessions Judge/Special Court for Control of Narcotic Substances Act, 1997, Lahore whereby the accused/appellant was convicted under section 9 (b) of Control of Narcotic Substances Act, 1997 and was sentenced to two years' R.I. Along with a fine of Rs,10,000. It was directed that in case of default in payment of fine, he will have to undergo S.I. For one month.
2. The case against the accused/ appellant is based on F.I.R. No,567/2001 registered on 28-7-2001 in Police Station Shandara, Lahore under Sections 6/9 of Control of Narcotic Substances Act, 1997. The formal F.I.R. Exh.PA/1 was registered on the basis of complaint Exh.PB sent by Khalid Mahmood, A.S-I.
Wherein he had stated aat on the receipt of a secret information, he along with some Police officials named in the F.I.R. Had applied `Naka' and saw a person coming on a Motorcycle bearing No,LHE-5203. On seeing the Police party, he tried to escape by turning away the Motorcycle but was apprehended. After his apprehension, he disclosed his name and a shopper bag was also recovered hanging around the handle of his Motorcycle. One Kg. Of opium was recovered from the said shopper, 10 grams of which was separated and sealed for chemical analysis. Thereafter the case was registered against the accused aforesaid.
3. As a result of investigation, the challan was submitted against the accused. The accused was formally charged in this case by the learned trial Court on 1-3-2002 and to which he pleaded not guilty and the prosecution was thus asked to produce its evidence.
4. In this case P.W.1 Mukhtar Ahmad, S.-I. And P.W.2 Muhammad Aslam, Constable are the formal witnesses.
5. P.W.3 Kalb-i-Abbas, Constable and P.W.4 Khalid Mahmood, A.S-I. Were members of the raiding party which had apprehended the accused and had recovered one K.g. Of opium from him and which was taken into possession vide memo Exh.PA.P.W.4, Khalid Mahmood, A.S-I. Had sent the complaint Exh.PB to the Police Station and on the basis of which the formal F.I.R. Exh.PA/1 was registered.
6. The report of Chemical Examiner was tendered in evidence as Exh.P.C. And prosecution evidence was closed on 18-7-2002
7. On the conclusion of the prosecution evidence, the statement of the accused was recorded under section 342, Cr.P.C. And wherein he denied all the incriminating circumstances. In answer to the question as to why this case against him and why the P.Ws. Deposed against him, the accused replied as under:-- ' "The local police of Police Station Shandara had illegally confined my brother Shahid Iqbal three days prior to the registration of present case and police had also taken Rs,41,400 at the time of arrest along with my Motorcycle. I went to the police station being employee of Punjab Constabulary and asked for release of my brother to Khalid and asked for return of amount and in this regard dispute arose and I threatened him that I will get my money back. Said Khalid A.S.-I.
Released my brother Shahid Iqbal but refused to return of Rs,41,400 and falsely involved me in this case so that I should not ask for the money. This case is totally false. Nothing was recovered from me. All the other P.Ws. Being his subordinates appeared against me and Khalid was interested in my conviction and for the same reason the Investigating Officer of this case namely Muhammad Tufail refused to appear against me as it was a false case."
' However, he did not make statement on oath under section 340 (2), Cr.P.C. Nor did he produce any evidence in defence.
8. On the conclusion of prosecution evidence, the accused was convicted and sentenced as aforesaid, hence this appeal.
9. Arguments have been heard and record perused.
10. In this case P.W.3 Kalb-i-Abbas, Constable and P.W.4, Khalid Mahmood, A.S-I. Were the members of the raiding party. They deposed on the same lines as indicated in the F.I.R. And proved the recovery of one K.g. Of opium from the accused. The report of Chemical Examiner (Exh.PC) is positive for opium which is an intoxicant. The defence version of the accused does not inspire- confidence. The police witnesses in cases of this nature are as competent witnesses as members of the general public. There is no such inconsistency or contradiction in the prosecution story which may strike down the prosecution story from its very foundation. The prosecution evidence in this case inspires confidence. From the other side, the accused had not produced any evidence in defence. It is not understandable as to why the Investigating Officer would like to falsely implicate the accused in a case of this nature only if he had asked him to return to him the amount of Rs,41,400. Had it been so, the accused/appellant would have brought the A matter to the notice of the higher Police Officers. But the fact that he has not produced any evidence in defence indicates that he did not possess any evidence in support of his version. The presumption of law of evidence would certainly go against him.
11. Under the circumstances of the case, we are inclined to uphold the conviction of the accused as recorded by the learned trial Court. However, during the arguments the learned counsel for the appellant submitted that he will be satisfied if the sentence of imprisonment awarded to the accused in this case is further reduced. After hearing his arguments on this point and also of the learned counsel for the State, we are inclined to reduce the sentence of imprisonment of the accused/ appellant in this case to that already undergone by him.
12. In view of what has been stated above, we uphold the conviction of the accused as recorded by the learned trial Court under section 9 (b) of Control of Narcotic Substances Act, 1997. But under the peculiar circumstances of the case, we reduce the sentence of imprisonment to that already undergone by the accused/appellant. However, we uphold the sentence of fine of Rs,10,000. In case of default in payment of fine, the accused/ appellant will have to undergo S.-I. For one month.
13. With the above modification in the impugned judgment, the appeal filed by the accused/appellant is dismissed.