MUHAMMAD ISMAIL alias SALLU vs THE STATE

' SHAHJI RAHMAN KHAN, J.---This criminal appeal is directed against the judgment, dated 3-11-2007 passed by the learned Additional Sessions Judge-IV D.I. Khan, whereby the appellant, Muhammad Ismail, has been convicted under section 9(a) C.N.S.A. And sentenced to six months' R.I. With fine of Rs.3000, or in default to undergo one month simple imprisonment.

2. On the complaints of residents of the locality that the appellant was secretly selling heroin in the deserted place of his house after `Eisha', Muhammad. Hussain Khan S.H.O. Of Police Station Cantt: D.I. Khan along with police party had raided his house and he was found in possession of heroin packed in different `purries'. He was, therefore, arrested and booked for an offence under sections 3/4 of Prohibition (Enforcement of Had) Order, 1979 vide case F.I.R. No. 123, dated 22-3-2005 of Police Station Cantt: D.I. Khan

3. After completion of investigation, the accused was forwarded to the Court for trial where he did not plead guilty to the charge and claimed trial. He, however, neither pleaded guilty nor opted to be examined on oath under section 340(2), Cr.P.C.

4. In order to prove its case, 'the prosecution examined three witnesses whereafter statement of the accused was recorded. The learned trial Judge after hearing arguments of learned counsel for the parties passed the impugned judgment.

5. Learned counsel for the appellant put forth two fold arguments; Firstly that the appellant was falsely involved in the case as Members from the public were not associated in the recovery process and secondly that the delayed receipt of FSL report has vitiated the trial, therefore, the impugned judgment is not sustainable. Reliance was placed on the judgments reported as 1989 MLD 2677 and PLD 2005 Karachi 146.

6. The learned Deputy Advocate General, however, resisted the appeal on the ground that the appellant was found red-handed along with the heroin and the offence being heinous in nature, he is not entitled to any leniency.

7. After considering the arguments advanced at the bar and going through the record, we found that the appellant was caught red-handed by the police party while dealing in the business of heroin. No mala fide or ill will was established against the complainant/S.H.O. Or police party to falsely implicate him in the case. In the given circumstances, the delayed receipt of FSL report would make no difference so as to interfere in the impugned judgment and to acquit the appellant from the charge. The facts and circumstances of the authorities referred to and relied upon by the learned counsel for the appellant are quite distinguishable from the facts and circumstances of case of the appellant. The offence is of heinous nature which destroys the whole society.

8. It was held in the case reported in 2004 MLD Page 200 that police officials are as good witnesses as other public unless any mala fide is established against them. Deposition of police officials cannot be brushed aside simply on the bald allegation that they belong to the police department.

The requirement of section 103, Cr.P.C. Is not absolute in the sense that failure to comply with it will make the search illegal. In the instant case, the convict/appellant having failed to establish any mala fide, ill will, enmity or mis-conduct in the investigation, the evidence brought on record by the prosecution is to be relied upon. Therefore, the learned trial Judge has rightly convicted and sentenced the appellant through the impugned judgment which is based on correct appreciation of evidence brought on record.

8-A. Consequently, we find no substance in this appeal which is hereby dismissed.