SHAHID ISHAQ vs THE STATE
This appeal challenges the conviction of the appellant under Section 9(b) of the Control of Narcotic Substances Act, 1997, for the alleged possession of one kilogram of Charas. The prosecution case relied solely on police witnesses, despite the availability of public witnesses at the scene of the recovery, and admitted to patrolling in a private vehicle. The appellant contended that he was falsely implicated due to a dispute over unpaid wages with a local influential landlord, Ch. Muzaffar, who allegedly maintained close ties with the police. The core legal question was whether the prosecution successfully proved the recovery beyond reasonable doubt given the absence of independent corroboration and the plausible defense of enmity. The Court held that the prosecution failed to adequately substantiate the recovery, noting the failure to associate public witnesses and the credibility of the appellant's defense regarding feudal influence. Consequently, the Court maintained the conviction but reduced the sentence to the period already undergone, while upholding the fine. The judgment reinforces the principle that in narcotic cases, the absence of independent witnesses, when available, weakens the prosecution's case.
- Does the failure to associate independent public witnesses in a narcotics recovery case render the prosecution's evidence unreliable?
- Can a conviction under the Control of Narcotic Substances Act 1997 be sustained solely on the testimony of police officials when the defense alleges enmity?
- Is the appellate court empowered to reduce a sentence to the period already undergone in narcotics cases where the prosecution's case is weak?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 340(2), Code of Criminal Procedure 1898
' ALI NAWAZ CHOWHAN, J.---Shahid Iqbal appellant has convicted under section 9(b) of the Control of Narcotic Substances Act, 1997 by the learned Additional Sessions Judge, Kharian vide judgment dated 6-11-2002 in case F.I.R. No,273 dated 3-12-2001 registered at Police Station Karali and sentenced to 3 years' R.I. With fine of Rs,10,000 in default whereof to further undergo R.I for 6 months.
He was given the benefit of section 382-B, Cr.P.C.
2. Briefly the prosecution case is that on 3-12-2001 on a spy information Wasif Hussain S.I. Along with other police officials apprehended the appellant and on his personal search 1 kilogram Charas was recovered.
3. The prosecution to prove its case examined as many as five witnesses. Muhammad Ilyas A.S-I.
P.W.1 drafted formal F.I.R. Exh.P.A./1 on the basis of complaint Exh. P. A . Muhammad Riaz C.No,1095 P.W.2 transmitted the sealed parcel said to contain Charas to the office of Chemical Examiner, Lahore. Zafar Iqbal P.W.3 deposed about the safe custody of sealed parcel containing Charas in the Malkhana. Syed Wasif Hussain S.I. P.W.4 reiterated the contents of the F.I.R. And prepared recovery memo. Exh.P.B. Malik Banaras Khan S.I. P.W.5 is the witness of recovery. The learned ADA after tendering the report of Chemical Examiner Exh.P.D. Closed the case for prosecution. The accused was examined under section 342, Cr.P.C. He denied all the allegations and recovery of Charas. He neither opted to appear as his own witness under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
4. The following excerpts from the statements of prosecution witnesses being relevant are reproduced hereunder:--- ' Syed Wasif Hussain P.W.4.
' "It is correct that the seal of the Charas case property is having' the words MB. There were many persons present on their own shops around the place of recovery. It is correct that the accused present in the Court belongs to Shankhurd village. It is correct that Muzaffar is a landlord of that village. It is correct that the accused present in the Court is a Muslim Sheikh by Zaat. I have heard that the accused present remained like a servant in the Dera of Ch. Muzaffar. I do not know that the accused Shahid Ishaque demanded his money of service but the said Ch. Muzaffar refused to give the same. It is correct that Ch. Muzaffar of village Shankhurd is a big landlord and usually visited the police stations. I do not know that whether the business of Charas runs at the Dera of Ch. Muzaffar."
' Malik Banaras Khan S-I. P.W.5.
' "We were patrolling on private vehicle on the day of recovery."
' "It is correct that he is Musalli by Zaat. It is correct that Ch. Muzaffar is landlord of that village. It is correct that said Ch. Muzaffar usually visit the P.S. I do not know that the accused present in Court was serving at the Dera of Ch. Muzaffar.
' "It is correct that I did not associate any public person in the recovery proceedings."
5. In his testimony under section 342, Cr.P.C. The case of the appellant was:--- ' "I was servant of Ch. Muzaffar who is landlord of village Shahan Khurd. He was running a business of narcotics at his' Dera, on which police raided and Charas was recovered but Ch. Muzaffar oftenly used to visit the police station and he has also good relations with the police officers officials. I demanded the salary of about six months but Ch. Muzaffar refused to pay the same on which I protested, so Muzaffar took benefit from his better contacts with the police personnel. The police involved in this case falsely on behalf of Muzaffar Chaudhry."
6. All the witnesses here are police personnel. The private witnesses were available but were not joined. The status of the appellant and the version advanced by him during cross-examination and during A. His statement under section 342, Cr.P.C. Can have basis keeping in view our rural life and the feudal conspiracies. So it will be in the interest of justice we while keeping in view the fact that the appellant has already suffered the rigors of trial and incarceration ever since his arrest after he was taken into custody on 6-11-2002 when he was convicted and while also keeping in view the order dated 13-1-2003 whereby he was refused the benefit of suspension of sentence by this Court, reduce his sentence to one undergone while maintaining the quantum of fine and sentence in lieu thereof. Disposed of accordingly.