MUHAMMAD SARFRAZ Versus State

SARDAR TARIQ MASOOD, J.---

C.M.A. NO.115-L/2017.

For the reasons mentioned in the application for condonation of delay, the same is allowed and delay is condoned.

CRL. PETITION NO.286-L OF 2017

2. The petitioner was indicted in case FIR No.278/2012, registered at Police Station Phoolnagar, District Kasur, on 7.8.2012, under section 9(c) of the Control of Narcotic Substances Act 1997 [herein after referred to as the Act'], as 5 packets containing 5Kg Charas was recovered from his possession. After a full-fledged trial he was convicted by the trial Court under section 9(c) of the Act and was sentenced to 7-1/2 years' R.I. with a fine of Rs.35,000/- or in default whereof to further undergo 6-1/2 months' S.I. Benefit of section 382-B, Cr.P.C. was also extended to him. The Petitioner filed Criminal Appeal No. 2251 of 2015, before the High Court which was dismissed vide impugned judgment, hence this Petition for leave to appeal.

3. According to the prosecution case a raid was conducted; the petitioner was apprehended and 5 Kg Charas, wrapped in 5 packets, was recovered from his immediate possession. 5 separate sealed parcels were prepared after extracting small quantity of narcotics from each packet and was forwarded to the office of Punjab Forensic Science Agency which were tested positive.

4. We have heard the learned counsel for the petitioner and have perused the available record. The record reveals that the petitioner was caught red-handed and narcotics were recovered from his exclusive possession. Some quantity of narcotics was extracted from each packet and five separate sealed parcels for chemical analyses were prepared and forwarded to the office of the Punjab Forensic Science Agency. The report of the Chemical Examiner was tendered during trial which was positive. The recovery witnesses remained consistent on each and every material point and no material contradiction in their statements was pointed out by the learned counsel for the petitioner. The said witnesses have no animosity or ill will towards the petitioner, hence have no motive to falsely implicate the petitioner. Their statements were further corroborated by the report of the Chemical Examiner. The contradiction between other documents and site plan (Exb.PB), pointed out by the learned counsel for the petitioner, has no significance because in the FIR and the recovery memo it is specifically mentioned that the recovery of narcotics was effected from the petitioner at 'Bairoon Adda, Phoolnagar'. The recovery witnesses in their statements have categorically stated that the raid was conducted at 'Bairoon Adda'. The site plan (Exb. PB) was prepared by Muhammad Arshad Khan, S.I. (PW-3) who is not an eye-witness in this case and he arrived at the place of occurrence when the investigation was entrusted to him; so the mentioning of 'Androon Adda' in the site plan may be a clerical mistake. Although there was a minor delay in sending the sample parcels to the Punjab Forensic Science Agency but the rules to that effect are directory and not mandatory. There is nothing on record to establish that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency, remained intact. The arguments regarding applicability of section 103, Cr.P.C. has no force as section 25 of the Act had ousted the applicability of section 103, Cr.P.C. in the cases of narcotics. Non arrest of Jabbar and Shakir, in this case by the police, is not helpful to the petitioner because the names of the said persons came to the surface, when the petitioner claimed that he had purchased the said narcotics from the said persons. This statement of the petitioner before the police in custody was inadmissible. As already discussed, the prosecution has proved its case through trustworthy ocular account (recovery witnesses) which is corroborated by the positive report of Punjab Forensic Science Agency. Both the Courts below have concurrently observed that the prosecution has proved its case beyond any shadow of doubt against the petitioner.

We are not persuaded to differ with the concurrent conclusion drawn by the Courts below. We also do not find any legal or factual defect in the impugned judgment; resultantly, this petition for leave to appeal is dismissed and leave is refused.

MWA/M-41/SC Petition dismissed.