MEHBOOB ALAM 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 27.3.2019 passed by the learned Additional Sessions Judge/Special Court (CNS), Sahiwal, in case FIR No. 454/2018 dated 9.10.2018 whereby the Appellant was convicted under section 9(c) of the Act and sentenced to rigorous imprisonment for four years and six months with fine of Rs.20,000/- and in event of default to undergo simple imprisonment for a further period of five months. However, benefit of section 382-B, Cr.P.C. was extended to him.
2. Brief facts of the case are that on 9.10.2018 the Appellant was arrested by Naseem Akhtar/S1 (PW-3) from Sahu Dhaku Morr, Chak No.77/5-L and 1365 grams charas was recovered from his possession. Sanaullah/SI (PW-4) investigated the case who found that the Appellant had committed the offence. On completion of investigation report under section 173, Cr.P.C. was submitted.
3. On 3.1.2019, the learned Additional Sessions Judge indicted the Appellant who pleaded not guilty and claimed trial. In order to prove the charge the prosecution produced four witnesses. Naseem Akhtar/SI (PW-3) was the Complainant. He and Imtiaz Hussain 292/C (PW-1) testified about the recovery of 1365 grams charas from the Appellant. Zulfiqar 1107/HC (PW-2) was the Moharrar of the police station. He registered FIR Exh.PB and also deposed about the safe custody of the case property in the Malkhana. He further stated that on 15.10.2018 he handed over sealed sample parcel to Naseem Akhtar/SI (PW-3) for submission to the Punjab Forensic Science Agency (PFSA) for chemical analysis. Naseem Akhtar/SI (PW-3) confirmed safe delivery of sample at the PFSA. Sanaullah/SI (PW-4) being the Investigating Officer gave details of the evidence he collected in this case. In documentary evidence the prosecution inter alia produced the Narcotics Analysis Report Exh.PE.
4. In his statement under section 342, Cr.P.C. the Appellant denied the allegations levelled against him and professed innocence. He maintained that he along with Munir and Ibrar was apprehended by the police on 7.10.2018 at 12:30 p.m. from the playground of Boys Higher Secondary School Chak No.82/5-L, Sahiwal, where bout of roasters was being held and people were betting and depositing money with him. Shaukat Ali/AST searched him and recovered Rs.235,000/- from his pocket. He maintained that his brother Zia-ul-Haq approached Shaukat Ali/ASI who released him and his companions but refused to return the money. When he insisted the police booked him in a false case. He further stated that Ibrar filed an application against Naseem Akhtar/SI, Shaukat Ali/ASI and other five police officials of Police Station Yousafwala and Munir filed another application against Shaukat Ali/ASI and others for their highhandedness. Ibrar also filed a petition under section 22-A, Cr.P.C. before the learned Justice of Peace, Sahiwal. The Appellant produced certified copies of the petition, report of Regional Director, Anti -Corruption and order dated 23.1.2019 as Exh.DB, Exh.DB/1 and Exh.DI3/2 respectively. He also produced copy of Munir's application as Mark-A. According to him, the PWs booked him in a false case to usurp the money. The Appellant neither made statement on oath under section 340(2), Cr.P.C. nor examined any witness in his defence.
5. On the conclusion of trial, vide impugned judgment dated 27.3.2019, the learned Additional Sessions Judge convicted and sentenced him as mentioned hereinabove. Hence, this appeal.
6. In support of his appeal, learned counsel for the Appellant contended that the prosecution had failed to prove its case beyond reasonable doubt. The prosecution evidence was riddled with contradictions. All the witnesses were police officials and there was no independent witness to corroborate them. He further contended that the police officials had flagrantly violated section 103, Cr.P.C. which rendered the alleged recovery inconsequential and the same could not be relied upon to record a conviction against the Appellant. Lastly, the report Exh.PE was unreliable and could not be used against the Appellant because the alleged parcels were sent to the PFSA with considerable delay. He prayed that this appeal be accepted and the Appellant may be acquitted.
7. On the other hand, the learned Deputy Prosecutor General vehemently opposed this appeal. He contended that the Appellant was apprehended red handed while carrying huge quantity of charas. The prosecution case was fully supported by Imtiaz Hussain 292/C (PW-1) and Naseem Akhtar/SI (PW-3). During the investigation the Appellant was found to have committed the offence and there was no material available on the record to substantiate his claim that he had been falsely implicated. The learned Law Officer maintained that the prosecution had proved its case beyond any shadow of doubt through direct evidence which was reinforced by the report of PFSA Exh.PE. He prayed for dismissal of this appeal.
8. Arguments heard. Record perused.
9. The Complainant, Naseem Akhtar/SI (PW-3), deposed that on 9.10.2018 he was patrolling at Sahu Dhaku Morr Chak No.77/5-L with Imtiaz Hussain 292/C (PW-1), and other police officials when they saw a person coming from the side of Chak No.78/5-L who turned back on seeing them. The Complainant got suspicious and apprehended him with the help of his men who disclosed his name as Mehboob Alam (the Appellant). He was carrying a shopping bag in his right hand. The Complainant checked his shopping bag and found 1365 grams charas therein in the shape of seven pieces - six weighed 200 grams each and the seventh was of 165 grams. He separated 10 grams each from six pieces and eight grams from the seventh one for chemical analysis and prepared seven sealed sample parcels thereof and secured the remainder P-1 through a distinct sealed parcel. Then he took all the eight parcels into his possession vide Recovery Memo Exh.PA. Imtiaz Hussain 292/C (PW-1) fully corroborated the statement of Naseem Akhtar/SI (PW-3) on all material aspects particularly the date, time, place and the manner in which the recovery was effected. Despite lengthy, cross-examination the Appellant could not impeach their credibility. The report of the Chemical Examiner Exh.PE has confirmed that the recovered substance was contraband charas. We have particularly noted that the report Exh.PE contains details of the protocols applied for the analysis samples in terms of Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001.
10. The learned counsel for the Appellant referred us to certain portions of the depositions of PWs Imtiaz Hussain 292/C (PW-1) and Naseem Akhtar/SI (PW-3) to point out variations therein. We have observed that the said variations are trivial and do not discredit the witnesses. In Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), the Hon'ble Supreme Court of Pakistan held:
"If in cross-examination intrinsic value of incriminating evidence of a witness has not been shaken his statement cannot be discarded for minor contradictions. Reference may be made to the case of Mushtaq alias Shaman v. The State (PLD 1995 SC 46)."
11. The argument of the learned counsel for the Appellant that the prosecution case lacks credibility because nobody from the general public was associated with the recovery proceedings has no merit because section 25 of the Act excludes the application of section 103, Cr.P.C. to narcotic cases. Reliance is placed on Zulfiqar Ahmad v. The State (2006 SCMR 800) and Aala Muhammad and another v. The State (2008 SCMR 649).
12. We have also attended to the defence plea regarding false implication. In his statement under section 342, C.P.C. the Appellant stated that he along with Munir and Ibrar was apprehended by the police from the playground of Boys Higher Secondary School and also produced documents Exh.DB to Exh.DB/2. However, he did not examine the said two persons who were vital to prove his innocence. Hence, his plea is rejected.
13. For what has been stated above, we have observed that the prosecution has proved the charge against the Appellant beyond reasonable doubt. Accordingly, this appeal is dismissed. The conviction and sentence recorded by the learned trial Court against him through the impugned judgment is maintained.
SA/M-6/L Appeal dismisse