ASHRAF HUSSAIN Versus State
TARIQ SALEEM SHEIKH, J.--- This appeal under section 48 of the Control of Narcotic Substances Act, 1997 (the "Act"), is directed against judgment dated 11.4.2019 passed by the learned Additional Sessions Judge, Layyah, in case FIR No.444/2018 dated 11.8.2018 whereby the Appellant was convicted under section 9(b) of the Act and sentenced to rigorous imprisonment for one year and three months with fine of Rs.9,000/- and in default thereof to undergo simple imprisonment for a further period of three months and 15 days. Benefit of section 382-B, Cr.P.C. was, however, extended to him.
2. Brief facts of the case are that on 11.8.2018 at about 09:05 a.m. the Appellant was arrested from the Old Building of the Highways Department and 1140 grams charas P-1, a cell phone P-2 and Wattak money in the sum of Rs.400/- P-3/1-4 were recovered from him. Muhammad Sajjad Bashir/ASI (PW-5) sent complaint Exh.PA to the Police Station through Muhammad Ramzan/PQR on the basis of which Aftab-ul-Hassan Chaudhry/ASI (PW-1) registered FIR No.444/2018 Exh.PA/1. Muhammad Umar Khan/SI (PW-4) investigated the case and found that the Appellant had committed the offence. Report under section 173, Cr.P.C. was submitted accordingly. On 11.10.2018 the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial.
3. The prosecution produced five witnesses to prove the charge. Muhammad Sajjad Bashir/ASI (PW-5) was the Complainant of the case who along with Ameer Muhammad 887/C (PW-3) testified about the recovery of the contraband, cell phone and Wattak money from the Appellant. Muhammad Sajjad Bashir/ASI (PW-5) also proved transmission of the sealed sample parcel of the charas to the office of the Punjab Forensic Science Agency (PFSA) for chemical analysis. Aftab-ul-Hassan Chaudhry/ASI (PW-1) registered FIR Exh.PA/1. Zafar Iqbal 106/HC (PW-2) was Moharrar of the police station who testified about safe keeping of the recovered charas in the Malkhana. The Investigating Officer, Muhammad Umar Khan/SI (PW-4), described various steps of his investigation and the evidence he collected in this case. In documentary evidence, the prosecution inter alia produced report of the PFSA (Exh.PD), Rapat Roznamcha of Muhammad Umar Khan/SI regarding handing over the case property to Moharrar (Exh.PE), Rapat Roznamcha Rawangi of Muhammad Sajjad Bashir/ASI (Exh.PF), docket of PFSA Exh.PG and application for issuance of docket (Exh.PH).
4. In his statement under section 342, Cr.P.C. the Appellant denied the allegations levelled against him and professed innocence. He maintained that the police officials had falsely implicated him in this case to show their efficiency. The Appellant neither opted to get his statement recorded on oath under section 340(2), Cr.P.C. nor produced any evidence in his defence.
5. In support of this appeal the learned counsel for the Appellant contended that the Appellant was innocent and the case against him was mala fide, false and vexatious. He maintained that the prosecution evidence lacked credibility. All the witnesses were police personnel who could not be relied upon without independent corroboration. Even otherwise, there were material contradictions in their depositions which made them untrustworthy. He prayed that this appeal may be accepted and the Appellant be acquitted of the charge.
6. On the other hand, the learned Deputy Prosecutor General controverted the above contentions. He argued that a huge quantity of charas was recovered from the Appellant which was duly proved by Muhammad Sajjad Bashir/ASI (PW-5) and Ameer Muhammad 887/C (PW-3). They were corroborated by the Narcotic Analysis Report Exh.PD. There was no material contradiction in the prosecution evidence which could benefit the Appellant. During the investigation Muhammad Umar Khan/SI (PW-4) also found him guilty. He prayed for dismissal of this appeal.
7. Arguments heard. Record perused.
8. Muhammad Sajjad Bashir/ASI (PW-5) was not only the Complainant of the case but also a recovery witness. He deposed that on 11.8.2018 he was present at Pul Layyah Minor with other officials when he received a secret information that the Appellant was selling charas at the Old Building of the Highways Department whereupon he raided, nabbed him with five pieces of charas total weighing 1140 grams P-1 wrapped in a polythene bag, a cell phone P-2 and Wattak money of Rs.400/- P-3/1-4. PW Muhammad Sajjad Bashir/ASI further deposed that he chipped corner from every piece of the recovered substance and prepared a consolidated sealed parcel of 57 grams for chemical analysis and secured the residue in a separate parcel. After that he seized both these parcels, money and the cell phone vide Recovery Memo Exh.PB. Ameer Muhammad 887/C (PW-3) testified on the same lines and fully corroborated him on all material particulars. The Appellant cross-examined these witnesses at great length but could not impeach their credibility. The Narcotics Analysis Report Exh.PD confirms that the recovered substance was charas.
9. The learned counsel for the Appellant pointed out a couple of variations in the statements of PWs Muhammad Sajjad Bashir/ASI and Ameer Muhammad 887/C. We have, however, observed that the said variations are trivial and do not discredit them.
10. The prosecution case cannot be disbelieved on the ground that the Complainant did not associate any member from the general public with the recovery proceedings. This is for the reason, firstly, the provisions of section 103, Cr.P.C. have been excluded by section 25 of the Act and, secondly, the police officials are as good as any other witness unless it is proved through cogent evidence that they have any malice against the accused. In the instant case, the Appellant has not produced any evidence that the Complainant or the other police officials had any animus which could motivate them to falsely implicate him.
11. It is the prosecution's own case that the charas recovered from the Appellant consisted of five pieces which had a total weight of 1140 grams. PWs Muhammad Sajjad Bashir/ASI and Ameer Muhammad 887/C reiterated this fact in their respective examination-in-chief as well and conceded that one consolidated sample was drawn from the said substance for chemical analysis. Therefore, for the safe administration of justice, only that quantity would be considered against the Appellant which was received at the PFSA, i.e. 54.40 grams. Accordingly, we convert his conviction from sections 9(b) to 9(a) of the Act and while following the sentencing guidelines set out by this Court in Ghulam Murtaza and another v. The State (PLD 2009 Lah. 362) and reaffirmed by the Hon'ble Supreme Court of Pakistan in Ameer Zeb v. The State (PLD 2012 SC 380) reduce his sentence to rigorous imprisonment for nine months with fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for a further period of two months and 15 days. However, benefit of section 382-B, Cr.P.C. shall be available to him.
12. Subject to the above modification, this appeal is dismissed.
SA/A-2/L Sentence reduced.