ZAFAR IQBAL Versus State

MUHAMMAD SAYEED AKHTAR, J .---Challenging his conviction and sentence in case vide F.I.R. No.48, dated 13-2-1999 under section 9(c) of the Control of Narcotic Substances Act, 1997 and Articles 3/4 of the Prohibition (Enforcement of Hadd), Order, 1979, at Police Station Garh Mahraja Tehsil Shorekot District Jhang, Zafar Iqbal, appellant has filed the instant appeal against the judgment, dated 9-3-2002 passed by learned Additional Sessions Judge, Shorekot District Jhang, whereby he has been sentenced to suffer seven years' R.I. under section 9(c) of the Control of Narcotic Substances Act, 1997. The appellant was also extended benefit of section 382-B, Cr.P.C.

2. Briefly the prosecution story is that pursuant to secret information that accused/ appellant is selling narcotics, at Darbar Fateh Ullah Shah, Mouza Bolla Balochan, a raid was conducted at the said place, he was nabbed and 2 kilograms `opium' was recovered from his possession along with a cash of Rs.950 with currency notes of the denomination of Rs.100 and Rs.50. Out of the recovered "opium" 10 grams was sent to the Chemical Examiner for analysis.

3. Formal charge was framed on 24-8-1999 under section 9(c) of Control of Narcotic Substances Act, 1997, to which the accused pleaded not guilty and claimed trial.

4. During trial, the prosecution examined four witnesses. P. W.1 is Shaukat Hayat, MHC. He received complaint Exh. P. A. at police station and recorded the formal F.I.R. Exh.P.A./1. P. W.2 is Shaukat Ali Constable, he was handed over a sealed parcel containing "opium" which he delivered in the office of Chemical Examiner, Punjab, Lahore for analysis on 10-4-1999. Akbar Hayat, S-I., appeared as P.W.3, he was member of raiding party. He recovered from the accused/appellant opium P.1 and sole proceeds P.2. The opium P.1 and currency notes P.2 were taken into possession vide recovery memo. Exh.P.B. Out of the recovered opium ten grams was separated and sealed into parcel for dispatching the same to the office of Chemical Examiner, Punjab, Lahore, for chemical analysis. The report of the Chemical Examiner is Exh.P.D. P.W.4 Muhammad Mumtaz, S-I., investigated the case and found the accused guilty and challaned him. The accused when examined under section 342, Cr..P.C., denied the prosecution story. He declined to depose on oath under section 340(2), Cr.P.C., to disprove the allegation levelled against him. However, he opted to produce evidence in defence.

5. Heard.

6. We have considered the arguments of the learned counsel for the appellant as well as the learned. State counsel and perused the record: Pursuant to spy information that Zafar Iqbal, appellant is selling opium near Darbar Fateh Ullah Shah Mauza Boola Balochan, a police official in civil dress pretending to be a customer was sent to buy narcotic from him for Rs.200. He purchased the same from him and returned back. Thereafter a raid was conducted and 2 kgs opium along with sale proceeds of Rs.950 were recovered at the spot. After proper, verification raid was conducted and the appellant was caught red- handed, along with sale proceed to the tune of Rs.950.00. The report of the Chemical Examiner is positive. The appellant in his statement under section 342, Cr.P.C. in reply to question No.6 stated as under:---

"The local police with connivance of Munawar Ali Jaboana, political figure has registered this false case against me and the P. Ws: are police official therefore, they have deposed against me to show efficiency before the higher police officers. The recovery is fake and police planted against me."

Mere allegation of mala fide on the part of the police is of no avail unless it is proved on record. There is nothing on the record which may tend to show any enmity of the accused with police. The appellant has not even highlighted as to why the political figure connived with the police to falsely implicate him. The recovery of 2 kgs opium thus stands proved. That being so, we are of the considered view that the prosecution case stands proved beyond any reasonable doubt to sustain conviction. However, coming to the question of sentence, we note that appellant is a young man. Nothing has been brought on the record to show that he is habitual offender. He has already undergone major portion of his sentence. In these circumstances, taking a lienant view, while maintaining the conviction, we are inclined to reduce the sentence of seven years to the one already undergone. This appeal is disposed of with the above modification in terms of sentence.

N.H.Q./Z-32/L ??????????????????????????????????????????????????????????????????????????????????? Sentence reduced.