Hadi Ur Rehman vs The State

ORDER

MALIK HAQ NAWAZ, C.J.--The instant criminal appeal under section 48 of CNSA, 1997 read with section 410, Cr.P.C. has been filed by the present convict/appellant against the impugned judgment/conviction order dated 10- 10-2019 passed by the learned Special Judge CNSA/ Sessions Judge Gilgit, whereby the learned trial Court/ Special Judge CNSA has convicted the appellant/convict vide its order dated 10-10-2019 under section 9-C, CNSA, 1997 and sentenced him to undergo imprisonment for 05 years and also imposed fine of Rs. 300,000/- (three lac) which has been made impugned before this Court.

2. Brief facts of the case are that the police conducted a search operation on 23-11-2018 at 1645 hours within the premises of City Hospital Gilgit on special report and recovered 3500 grams of Chars (Gardah) from the accused Hadi Ur Rehman and chalked an FIR bearing No. 09/2018 at Police Station ANF Gilgit on 23-11-2018. The accused was arrested on the same day and on 05-01-2019 IP Muhammad Sharif filed incomplete report along with chemical examiner report and on 13-05-2019 the accused was formally charged for the alleged possession of contraband narcotic to which he did not plead guilty and claimed trial. The prosecution to prove the charge examined 04 PWs Babar Khan, Muhammad Maroof, Abu Baker and the complainant/I.O. of the case, Faisal Abbas himself and the accused was examined under section 342, Cr.P.C. on 26-09-2019 wherein the accused did not opt to rebut prosecution case on oath and trial was concluded.

3. The learned counsel for the appellant submitted that the local police has involved the convict/appellant just to save the real culprits in the instant case. The prosecution produced 04 PWs to prove their stance but the statements of all the PWs are contradictory to each other as well as the contents of FIR and failed to prove their case but the learned trial Court misread the evidence and passed the impugned conviction order which is not maintainable in the eyes of law and liable to be set aside. He further submitted that the entire case of prosecution is doubtful and ambiguous which is evident from the FIR wherein clear over writing is apparenting in column-1, furthermore, the prosecution has only cited their subordinate staff as witnesses of the alleged recovery instead of private witnesses. He further argued that the prosecution has not produced the alleged recovery before the learned Special Judge CNSA, but the learned trial Court instead of giving benefit of doub t to the appellant extended the same in favour of prosecution which is against the basic principles governing administration of criminal justice hence, the impugned judgment of the learned trial Court is not maintainable and liable to be set aside as there is no direct or indirect piece of independent and impartial evidence available on record. The learned counsel relied on 2017 YLR 1292 (Sindh, Hayder Abad Bench), 2008 YLR 985 (Lahore), 2012 YLR 251 (Sindh), 2015 YLR 2163 (Sindh), 2015 YLR 2520 (Sindh), 2016 YLR Note 123 (Lahore), 2016 YLR 85 (Sindh), 2009 SCMR 1169 (Supreme Court of Pakistan), 2019 PCr.LJ 1441 (Gilgit Baltistan Chief Court), 2012 CLC 1645 (Balochistan), 2007 YLR 373 (Peshawar).

4. On the other hand the learned Prosecutor ANF Mr. Sami Ahmed, Advocate vehemently opposed the arguments raised by the learned counsel for the appellants and submitted that the recovery of contraband narcotic is proved, the positive report of chemical examiner is on record. He further submitted that the over writing in column No.1 of FIR, non-citing of private witnesses during the recovery proceedings, discrepancies regarding time and date of departure and return of PW-1 non production of the bag in which the alleged chars was kept are no so fatal as alleged by the defence.

5. In the light of above submissions the learned prosecutor prays that the appeal of the present appellant be dismissed and upheld the impugned judgment/conviction order passed by the trial Court dated 10-10-2019.

6. We have heard the learned counsel for the parties at length and also gone through the record of the case with their able assistance.

7. As evident from the record allegedly four packets of Chars weighing 875 grams each were recovered from the possession of convict/appellant on 23.11.2018 and the same were sent to chemical examiner on 14-12-2018 after a delay of about one month and nine days and the delay in submission of samples remained unexplained. If 10 grams of Chars was taken from each packet, the chemical examiner has not stated in his report that from total 3500 gram of Chars (Gardah), how much Chars in purified condition could have been extracted. Such lapse on the part of chemical examiner cannot be ignored lightly and benefit of such doubts are to be given to the accused as a matter of right. IP Shah Faisal, complainant of the instant case, himself conducted the investigation of the case, which has not been approved as laid down in 2008 SCMR 991 and is against the concept of transparency and fair trial. The Appellant is also victim of biase d and partial investigation. The conviction is maintained but the sentence of convict/appellant is reduced from 5 years to 2 years rigorous imprisonment with benefit of section 382-B, Cr.P.C. The fine is also reduced from 300,000/- (three lac) to one lac which shall be recovered as an arrear of land revenue. In case of default of payment, he will further undergo 6 months rigorou s imprisonment with the above modifications the instant Criminal Appeal along with Criminal Miscellaneous No. 265/2019 are disposed of File.