SAMAWAT vs The STATE through Advocate General

' MALIK MANZOOR HUSSAIN, J.---This Criminal Appeal is directed against the judgment dated 2-5- 2013, passed by the learned ADJ-III/Judge Special Court, Mardan, whereby the appellant Samawat had been convicted under section 9(c) Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for three years with a fine of Rs,10,000 and in default whereof to undergo two months' S.I. The benefit of section 382-B, Cr P.C. Had also been extended to the appellant.

2. Briefly, facts of the prosecution case are that on 17-6-2012 Muqadam Khan, A.S.-I., while on 'Gashf' received spy information that the appellant would smuggle huge quantity of narcotics to Punjab and is present near Bilal Coach Adda. On receipt of information, the complainant along with Ali Zarshad Khan A.S.-I. Mohsin Fawad, A.S.-I., Asif, FC, Riaz, FC and other police contingent immediately rushed to College Chowk near Bilal Coach Adda and overpowered the appellant. The personal search of the appellant led to the recovery of charas, kept in black colour belt under the shirt of appellant. The recovered charas were weighted, which came out to be 7000 grams. Five grams from each packet was separated and sealed for purpose of sending to FSL and the remaining was sealed in separate parcel in presence of marginal witnesses. Murasila was drafted and immediately sent to Police Station concerned on the basis of which case F.I.R. No,697 dated 17-6- 2012 was registered at Police Station City, Mardan under section 9(c) Control of Narcotic Substances Act, 1997.

3. At trial, the prosecution examined four witnesses, P-W.1 Daud Khan, S.I., who incorporated the contents of murasila into F.I.R. Exh.P.A; P-W.2 Mohsin Fawad, A.S.-I. Who accompanied the complainant at the time of 'Gashf' and verified the recovery memo to be correct and signed by him as marginal witness. P-W.3, Muqadam Khan, ASI was the complainant and also endorsed his signature on recovery memo, vide which he had taken into possession the recovered charas weighing 7000 grams, in 7 packets. He drafted the murasila Exh.P.A/1 on the basis of which the case was registered. He also drafted application Exh.P.W.3/1 for sending the samples of the recovered contraband to FSL for analysis. P-W.4 Taj Muhammad Khan, SI was I.O. Who prepared the site plan Exh.P.B. At the instance of complainant and the eye-witnesses. He also recorded statements of P- Ws on the spot and received report of samples from FSL which is Exh.P.Z. On completion of investigation, this witness submitted the complete challan.

4. The statement of accused/appellant was recorded under section 342, Cr.P.C., wherein the appellant refuted the prosecution charge, however, opted to be examined on oath and refrained from producing any defence evidence. On conclusion of trial, the learned Trial Judge, having found the appellant guilty of the offence, convicted and sentence him for imprisonment and fine as mentioned above.

5. The learned counsel for the appellant contended that no witness from the locality which was a busy place, had been associated while preparing recovery memo Exh.P.W.2/1. He further contended that in spite of prior information, no test purchase had been made and likewise no money has been recovered from the accused/appellant. The learned counsel lastly halfheartedly argued that A.S.-I. Was not competent to arrest the accused/appellant as contemplated by section 21 of the C .

N. S. A .

6. The learned counsel appearing on behalf of the State argued that accused was apprehended on the spot with the contraband from his direct possession; no enmity was shown with the complainant as well as with the marginal witnesses of recovery memo and section 21 of C.N.S.A.

Was not mandatory but directory, thus the consequences of the same cannot be resulted into acquittal of the accused for this simple reason. We have heard the arguments advanced by the learned counsel for the appellant as well as for the State and with their assistance perused the material available on record.

7. We are not persuaded to agree with the learned counsel for the appellant that since the recovery was effected and initial investigation was made by an A.S.-I., in violation of provision contained in sections 21 and 22 of the C.N.S.A., 1997. It is by now well settled that the whole trial cannot be vitiated for the simple reason that arrest, seizure and initial investigation in the shape of recovery memo by an incompetent police officer. At the best, this can be termed as irregularity and can be cured under section 537, Cr.P.C.

8. In the case in hand, we have noticed that the police party headed by the complainant ASI were on routine Gasht, wherein they received spy information of presence of accused at College Chowk near Bilal Coach Adda. The police official was expected to immediately rush to the spot and apprehended such like offender, suspect of indulging narcotics offences. After arrest, the complainant handed over the investigation to P.W.4 Taj Muhammad Sub-Inspector who was competent to complete the investigation and submit the challan. Our this finding is supported by judgment delivered in the case of The State v. Bashir (PLD 1997 SC 408), Muhammad Hanif v. The State (2003 SCM R 1237) and 2007 SCM R 1671.

9. So far as the second ground taken by learned defence counsel that violation of section 103, Cr.P.C. Has been made by not associating the public witness at the time of recovery, this contention is also without any force of law as section 25 of C.N.S.A. 1997 has expressly excluded the application of section 103, Cr.P.C. To the cases registered under the Act, ibid. The police officials are as good witnesses as any other from public. Even in normal cases, the person from public, hesitates to be a witness of recovery or crime and it has been noticed by this Court as well as by the Hon'ble apex Court that in narcotics cases, no one from public comes forward to associate with the recovery of the same. Public is generally reluctant to become witness in such like cases out of fear of reprisals from the accused side. Police officials were as good witnesses as other public witnesses unless and until some enmity, ill will or mala fide has been proved on the record by the accused. Even otherwise search and arrest by police officer was only an irregularity and not an illegality vitiating the whole trial.

10. It has been observed by us that report of chemical examiner was not questioned by the defence at the trial or in the present appeal. The report was received in positive which fully corroborates the evidence furnished by the complainant as well as the recovery witnesses. No enmity or ill will had been established against the complainant as well as to the marginal witnesses of the recovery.

The prosecution had proved the guilt of the appellant beyond any reasonable doubt and had successfully discharged its burden through consistent and confidence inspiring evidence. Mere denial of the charge and pleadings innocence without substantiating his plea through cogent evidence is not sufficient for acceptance of instant appeal. The conviction is based on correct application of law and proper evaluation of evidence. We, therefore, maintain the conviction, however, as the record depicts that the appellant is first offender and having no record of past history and remained in jail from the date of registration of case, the sentence awarded to the appellant is reduced from 3 years to the period already undergone by him and also reduce fine of Rs,10,000 to Rs,5,000, in default whereof the appellant shall undergo one month SI. With these modifications, the appeal being devoid of any force is dismissed.

Sentence reduced.