QAISER KHAN Versus State
TARIQ MEHMOOD JAHANGIRI, J.--- Through the instant criminal appeal filed under Section 48 of Control of Narcotic Substances Act, 1997 read with Section 410 of Cr.P.C, the appellant has assailed judgment dated 14.06.2022, passed by learned Additional Sessions Judge-II/Special Judge (CNS), East-Islamabad, whereby the appellant has been convicted and sentenced to 03 years R.I. along with fine of Rs. 20,000/- in case of default in payment of fine, the appellant shall further undergo 05 months S.I. Benefit of Section 382-B, Cr.P.C. has also been extended to the appellant.
2. Brief facts narrated in the instant appeal are that on 18.09.2021 at about 05:30 p.m. in the area of Waheed Abad, Pindorian within jurisdiction of Police Station Khanna, Islamabad, on the tip of spy information, the appellant was caught red handed by the police officials of P/S Khanna, Islamabad, while possessing charas weighing 2100 grams, hence the instant F.I.R.
3. After apprehending the appellant/ accused, Abdul Waheed, A.S.I./ complainant of case (PW-1), investigated the matter, drafted written complaint (upon which FIR was registered), recovered narcotic substance, conducted personal search of accused. The investigation was finally carried out by Darya Khan S.I., who prepared recovery memos, recorded the statements under section 161, Cr.P.C of witnesses, prepared the un-scaled site plan and arrested the appellant, after that S.H.O. Police Station Khanna, Islamabad submitted the report under section 173, Cr.P.C. for commencement of trial.
4. On 16.12.2021, formal charge was framed against the appellant to whom he did not plead guilty and claimed trial. At the trial, the prosecution produced following witnesses. i. Abdul Waheed ASI (PW-1)/ Complainant of the case. ii. Muhammad Ikhlaq ASI (PW-2)/ Muharrar Malkhana. iii. Muhammad Nadeem No. 7221/C (PW-3) / member of the raiding party. iv. Mahasil Khan No. 4138/HC (PW-4) / member of the raiding party. v. Darya Khan S.I. (PW-5) / I.O of the case.
5. After the closure of prosecution evidence, the statement of accused was recorded under Section 342 of Cr.P.C, wherein all the incriminating material figuring against him at the trial was put to him. The accused pleaded innocence and claimed that the whole prosecution story was concocted as he was dragged into this false case with mala fide intention. The whole proceedings were conducted against him in order to show fake efficiency before the high-ups. The police officials were inimical. The accused neither opted to enter into the witness box as required under Section 340(2), Cr.P.C nor produced defense evidence.
6. Learned Judge Special Court (CNS), Islamabad after hearing the arguments of learned counsel for both the parties, examining the evidence available on record, convicted and sentenced the appellant / accused, as stated above vide impugned judgment, hence the instant appeal.
7. Learned counsel for the appellant/ accused inter alia contends that alleged recovery of charas was doubtful for the reason that recovery was not made in the presence of public witnesses, though the applicability of Section 103, Cr.P.C had been excluded through Section 25 of CNSA, 1997 but association of public witnesses was necessary when the proceedings were conducted on prior information; prosecution witnesses are not certain that whether one sample parcel was prepared or four, which creates serious doubts regarding the alleged recovery; site map without scale does not show the exact point / location where the police party was present on duty at the time of alleged recovery; the samples of charas were not taken properly according to law while sending for chemical examination; the impugned judgment of learned Court below is based on surmises and conjectures; learned trial Court has failed to appreciate the evidence of prosecution in its true prospective and has prayed that instant appeal be accepted and impugned judgment dated 14.06.2022 be set-aside.
8. Learned State Counsel fully supported the impugned judgment and in particular contended that the recovery of contraband has been effected; it had been kept in safe custody following its recovery until the time it was sent and received in the office of Chemical Analyzer for chemical examination, coupled with the report of Chemical Analyzer which is positive; there is no enmity of prosecution witnesses to depose against the appellant / accused; prosecution has fully proved its case beyond any shadow of doubt; that the learned trial Court passed the impugned judgment after appreciating the evidence available on record in its true perspective; therefore, under these circumstances, he prays that the instant appeal be dismissed.
9. We have heard the arguments advanced by learned counsel for the appellant, learned State Counsel and perused the record with their able assistance.
10. Learned trial Court in the impugned judgment has already discussed facts of the case as well as the evidence in detail and there is no need to repeat the same to avoid duplication and unnecessary repetition.
11. It is admitted that the appellant / accused was apprehended while carrying Charas weighing 2100 grams.
12. Prosecution has produced 03 eye-witnesses of occurrence as well as witnesses regarding the safe custody of carrying samples to the office of Chemical Analyzer.
13. Prosecution has also produced analysis reports of National Forensic Science Agency, Islamabad dated 05.10.2021, wherein it is concluded that submitted samples contain Charas (Narcotics) as defined in Section 2 of CNS Act, 1997 on the basis of test(s) performed and protocol of the same is also mentioned on the report of Chemical Analyst in detail.
14. The appellant / accused has not taken any specific defense plea in his statement recorded under section 342, Cr.P.C and in reply to a question that why this case and PWs have deposed against him; the appellant has stated that nothing was recovered from his possession, he is poor and innocent man and all proceedings conducted against him are fake.
15. Prosecution case hinges upon the statements of Abdul Waheed A.S.I./ PW-1, Muhammad Nadeem No. 7221-C/ PW-3 and Masal Khan No. 4138-HC/ PW-4. These witnesses have narrated the prosecution story in a natural manner and remained consistent throughout and their testimony which could not be shattered by the defence despite lengthy cross-examination. The said witnesses had no enmity with the appellant to falsely implicate him in the present case as a huge quantity of 2100 grams of charas cannot be foisted upon the appellant to fabricate a fake case.
16. Adverting to the contention of learned counsel for the appellant/ accused that no private person was joined in recovery proceedings except police officials, which is a violation of section 103, Cr.P.C. There appears no force in the contention of learned counsel as the application of Section 103, Cr.P.C., has been excluded by Section 25 of the Act, in narcotics cases. The Hon'ble Supreme Court of Pakistan in number of judgments has held that testimony of police officials is as good as any other private witness unless it is proved that they have animus against the accused. However, no such thing could be brought on record by the appellant in this case. In a case titled as Salah-ud-Din v. State (2010 SCMR 1962), it is held that:
"Reluctance of general public to become witness in such like cases has become judicially recognized fact and there was no way out to consider statement of official witness, as no legal bar or restriction has been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimony remained un-shattered during cross-examination."
It is also held in the case titled as Zafar v. The State (2008 SCMR 1254), that:
"Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees".
17. Police officials separated the samples from each packet in a prescribed manner and sent the same to the office of National Forensic Science Agency, Islamabad. The report whereof show that the samples were subjected to chemical and instrumental analysis and the same were found to be Charas.
18. As far as minor contradiction in the time of arrest and detaining the accused in the police lockup is concerned, the occurrence took place on 18.09.2021, whereas the statements of PWs-1 to 5 in the Court were recorded on 07.03.2022, 19.03.2022, 31.03.2022 and 14.04.2022, respectively i.e. after about 06 months of occurrence, so it cannot be expected that witnesses will give the timing etc. of acts done by them in a very perfect/ accurate manner. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as Anwar Shamim and another v. The State (2010 SCMR 1791) that:
"It is settled principle of law that minor contradictions or improvements in the statement of witnesses are to be over-looked."
It is also held in a case titled as Muhammad Shabbir and others v. The State (2020 SCMR 1206) that:
"It is established law that if the discrepancies are shattering the prosecution story on salient feature then it has substance to intervene on the subject otherwise it has no impact on the veracity of the prosecution story."
19. The Hon'ble Supreme Court has time and again held that the menace of drugs is increasing day by day due to various reasons. It is very disheartening to observe that every day there are many reports of drug peddlers being caught with drugs. This menace is a great threat to a peaceful society and is affecting many lives especially the youngsters, therefore, immediate steps are required to be taken to curb these nefarious activities. The proceeds of narcotics are largely utilized in anti-state / terrorist activities, which this country is facing since decades. In this regard reliance is placed on a case titled as Faisal Shahzad v. The State (2022 SCMR 905).
20. When the prosecution is able to prove its case on its salient features then unnecessary technicalities should not be allowed to hamper the very purpose of law on the subject. Close analysis of the whole prosecution evidence i.e. recovery of huge quantity of narcotics, separating the samples from each packet in a prescribed manner and sending them to the Chemical Examiner, report of the Chemical Examiner and statements of the prosecution witnesses when evaluated conjointly leave no room to come to a different conclusion than what has been arrived at by the learned Court below.
21. Keeping in view the laws laid down by the Hon'ble Supreme Court of Pakistan in the following cases, whereby appeals against convictions were dismissed and sentences awarded by learned Trial Courts were upheld: i. Case titled as Ajab Khan v. The State (2022 SCMR 317). ii. Case titled as Matti Ullah v. The State (2020 SCMR 1222). iii. Case titled as Aijaz Ali Rajpar v. The State (2021 SCMR 1773). iv. Case titled as Mian Khalid Perviz v. The State through Special Prosecutor ANF and another (2021 SCMR 522). v. Case titled as Shazia Bibi v. The State (2020 SCMR 460).
22. We are of the considered view that the prosecution has successfully proved its case against the appellant beyond any shadow of reasonable doubt. The defence has miserably failed to extract any material discrepancies or contradictions from statements of the prosecution witnesses. Accordingly, the instant appeal is dismissed and the impugned judgment passed by the learned Additional Sessions Judge-II / Special Judge (CNS), East-Islamabad, is upheld.
23. The case property shall be dealt with as directed by the learned trial Court. The record of the learned trial Court be sent down immediately.
MH/212/Isl. Appeal dismissed.