r Yq IN THE COURT OF SARDAR MUHAMMAD IQBAL DOGAR, ADDL. SESSIONS JUDGE/MCTC, | SAHIWAL. he] Narcotic Case No.05/AS) 2021 Narcotic Trial No.23/ASJ/2021 Date of Decision: 30.07.2021 The State vs. Abbas Ali S/O Ghulam Rasool, caste Kamboh, R/O street No.3, Baba Mast Colony, 86/6-R, District, Sahiwal. Case FIR No.20/2021. Offence U/S 9(c) CNSA, Police station: Fateh Sher, Present:- Rana Azhar Amin, learned DDPP for the state. Accused Abbas Ali in custody. Ch. Muhammad Ramzan Kamboh advocate for accused. JUDGMENT The local police placing the name of accused Abbas Ali in column No.3 of report u/s 173 Cr.P.C has sent up him to face the trial in abovementioned case. 2. Precisely, facts as emerged from the prosecution case are that on 13.01.2021 at 09:10 a.m, in the area of Pull Garvi, on suspicion accused who was riding on a motorcycle, was apprehended by the police party comprising on Ahmad Masood SI (PW-6), Akhtar Ali ASI (PW-3), Mehmood-ul-Hassan 902/HC (PW-5), Arsal Farid 370/C (given up PW). During search, charas comprising of two packets weighing one of 1260-grams P2 and second of 1050-grmas P3 total weighing 2310- grams charas along-with sale proceed Rs.430 P1/1-8 were recovered from the possession of accused. 63- grams and 52.5-grams @ 5% were separated respectively out of both packets of recovered contraband as sample parcel for its onward transmission to the officeSardar i Ait, 2 FURNo 2021 a je) CNSA, PS Fath Sh Judgment of PFSA for chemical examination. Motorcycle No. SLK 2628 P4 which was under the use of accused at the timec * of his arrest, was also taken into possession. Complaint Ex.PD was sent to police station for registration of case. 3. After completion of police proceedings and investigation, challan against accused was sent up by the police of Fateh Sher police station along-with accused to face the trial. 4. Copies of the documents as required under section 265-C, Cr.P.C, 1898 were delivered to the accused. Thereafter, charge was framed against accused on 27.03.2021 which he pleaded not guilty and claimed trial. Thus, prosecution was called upon to lead its evidence. 5. In order to establish its case against the accused, the prosecution produced following witnesses. The gist of prosecution evidence is as under: - i. PW-1 Fayyaz Ahmad Sub-Inspector is Investigating Officer of this case. He investigated the case, prepared unscaled site plan Ex.PA. He recorded statements of PWs. He deposited sample parcel in the office of PFSA and the remaining case property in| malkhana. il. PW-2 Saif-ur-Rehman is member of police party. He carried out complaint at police station for registration of FIR and then handed over police file to 1.0. for investigation. He also supported the prosecution uhammad Iqbal na a iti, PW.3 Akhtar Ali ASI is recovery witness. He attested recovery memo Ex.PB through which case property was taken into possession. His examination-in- chief was recorded but cross-examination was reserved on the request of defence side. Learned DDPP discarded this witness being the patient of facial palsy vide his statement dated 15.7.2021.3 be Sut © Abts AU fan Noavatsus te CMSA, Pa Fae Sha Judgment iv. PW-4 Ghulam Hussain 985/HC is Moharrar. He chalked out FIR Ex.PC through front desk on complaint sent by Ahmad Masood S.I (PW-6). FIR was sent to 1.0 for investigation. Fayyaz Ahmad S.1/I.0 handed over to him four sealed parcels said to contain charas along-with sale proceed and then he handed over two sealed parcels to Fayyaz Ahmad SI/I.O for onward transmission to the office of PFSA and two sealed parcels of remaining charas along-with sale proceed to Fayyaz Ahmad S.1/NIU for depositing in Saddar.malkhana. ve PW.5 Mehmood-ul-Hassan 902/HC is also recovery witness. He also attested recovery memo Ex.PB through which case property was taken into possession. vi. PW-6 Ahmad Masood S.I is complainant of this case. He is author of recovery memo Ex.PB and complaint Ex.PD. He reiterated the prosecution story. vii. PW-7 Muhammad Ashfaq 251/C is Naib Moharrar Malkhana Saddar Sahiwal. He received two sealed parcels of remaining charas along-with sale proceed Rs.400/- from Fayyaz Ahmad S.I/NIU and he kept the same intact in malkhana. 6. The prosecution gave up PW Arsal Farid 370/C being unnecessary witness, tendered Narcotics Analysis Report FPSA, as Ex.PE and closed the prosecution evidence. 7. Upon conclusion of the prosecution evidence, the accused standing the trial was examined u/s 342 Cr.P.C. Accused denied all the allegations levelled against eiim and claimed his innocence. To a question that why this case was made against him and why the PWs deposed against him, accused furnished following reply: - It is a false case. Neither any such occurrence hi occurred nor I was arrested from the alleged place of occurrence. Actually 1 was arrested by two police officials sitting on motorcycle in front of Police Station Fatch Sher when I was refilling patrol in my motorcycle from petrol pump situated opposite to Police Station, They saw Rs.9000/- in my front pocket of shirt and scold me that this motoreyele is stolen 444 a “aaa xe 4 fk Noauat ane) CNA PS Fh She and took me to Police Station. SHO of P.S Fateh Sher promised to my neighbourers that after completion of investigation of stolen motorcycle they will release me and will also return the amount Rs.9000/-. When my neighbourers asked the SHO that they visited the Police Station for 5/6 time but you are not releasing, They further stated that they will approach to the DPO, then SHO being annoyed and involved me in this false case. I have no previous criminal record and never remained indulged in any anti-social activities. | am innocent. 8. The accused did not opt to record his statement on oath under Section 340 (2) Cr.PC. No defence evidence has been adduced by the accused. 9. Rana Azhar Amin, learned DDPP for the state argued that the prosecution has succeeded in bringing home the guilt of the accused standing the trial by leading direct, oral and documentary evidence. He further argued that improvements and contradictions pointed out by learned defence counsel are minor in nature and not fatal for prosecution. He next argued that the statements of prosecution witnesses are consistent and confidence inspiring. He pointed out that the presumption u/s section 29 CNSA 1997 is to be drawn in favour of the prosecution and the accused was duty bound to prove the contrary. He concluded that the prosecution has proved its case against the accused standing the trial beyond any reasonable doubt and nothing has come on the record to constitute any mitigating circumstance in his favour. He submitted that IghstBagersed is liable to be convicted and sentenced according vie tS'faw. 10. Ch. Muhammad Ramzan Kamboh advocate, learned defence counsel submitted that case in hand is false and no recovery was effected from the possession of accused. He argued that evidence of the prosecution is filled with material contradictions. All the | witnesses are police officials who used to appear in the courts in routine to testify and thus had the status of experienced witnesses and despite of their experience5 18 Ne.2021 a ey ENSA, PS Fath She Judgment they had not corroborated each other. Learned defence counsel read the whole evidence and pointed out the contradictions in the statements of the witnesses. He further argued that the recovery of contraband substance was fake and planted one. At the end he submitted that prosecution has miserably failed to prove its case and requested that the accused may be acquitted from the charge. 11. I have heard learned DDPP for State as well as learned counsel for the accused and perused the record with their assistance. 12. The prosecution case is that on 13.01.2021 at 09:10 a.m, in the area of Pull Garvi, on suspicion accused Abbas Ali was apprehended by the police party comprising on Ahmad Masood SI (PW-6), Akhtar Ali ASI (PW-3), Mehmood-ul-Hassan 902/HC (PW-S), Arsal Farid 370/C (given up PW). During search, charas comprising of two packets weighing one of 1260-grams P2 and second of 1050-grmas P3 total weighing 2310-grams charas along-with sale proceed Rs.430 P1/1-8 were recovered from the possession of accused. 63-grams and 52.5-grams @ 5% were separated respectively out of both packets of recovered contraband as sample parcel for its onward transmission to the office of PFSA for chemical examination. Motorcycle No. SLK 2628 P4 which was under the use of accused at the time of his arrest, was also taken into possession. Therefore, case u/s 9-C of CNSA was registered against the accused. The prosecution case mainly lies upon the evidence of PW-6 Ahmad Masood Sub-inspector and PW- 5 Mehmood-ul-Hassan 902/HC being complainant and recovery witness respectively besides report of PFSA (Ex.PE). PW-6 Ahmad Masood SI was the complainant of this case who categorically supported the story of complaint Ex.PD. He further stated that two samples weighing 63-gms & 52.5-grams @ 5% were taken fromJudgment - both packets of total recovered charas for onward transmission to the office of PFSA, made sealed sample Mi parcels and parcels of remaining charas along with sale proceeds. Sale proceeds Rs.430/ P1/1-8 with the denomination of Rs.100x3, 50x2, 10x3, charas 1260 gms P2, 1050-gms P3 and motorcycle No.2628/SLK P4 were taken into police possession from the possession of accused through recovery memo Ex.PA by PW- 6/complainant. PW-5 Mehmood-ul-Hassan 902/HC is recovery witness of Ex.PB. PW-5 also deposed about whatever he saw and observed at the time and place of occurrence. He also attested the recovery memo Ex.PB through case property P1 to P4 were recovered from the possession of accused. 14, A careful examination of both these material witnesses reveals that they corroborated each and every material point particular such as time, identification of the accused, recovery of contraband substance, weight, place of recovery, quantity and sale proceeds. Despite of lengthy cross examination by learned defence counsel upon these PWs, nothing favourable was brought on record to create dent in prosecution case, Minor discrepancies absolutely do not demolish the prosecution case even otherwise, it is not a demand of law to narrate 4 the occurrence on each and every minor point to depose like a parrot or to visually microscopically. cu hd It is noticeable that both the recovery | Tuan cele e role ornate regard, the counsel “for the accused argued that complainant did not associate any private person from the locality which is violation of Section 103 Cr.P.C. In this regard, it is suffice to say that at present time general public is always hesitant to become a witness in such like criminal cases. Even otherwise the police witnesses are as good witnesses as private witnesses unless any malafide on their part is brought on record. It is now settled principle of law that7 Ft No2021 un te) CANA, PS Pah She. Judgment “applicability of section 103 of Cr.P.C in narcotics cases is excluded and non-inclusion of any witness is not a serious defect to vitiate the conviction.” Reliance is placed on celebrated precedents reported as 2001 SCMR 36, 2005 SCMR 731, 2005 P Cr. Lj 1562 [Peshawar] & 2008 SCMR 1254, 16. The prosecution evidence further reveals that PW-4 Ghulam Hussain 985/HC being Moharrar chalked out FIR Ex.PC on the basis of complaint Ex.PD. PW- Investigating Officer/PW-1 handed over to him four sealed parcels i.e. two as sample parcels for chemical examination and two of remaining case property along with sale proceeds and motorcycle. He handed over two sample parcels of chars to PW-1 on 14.01.2021 for onward transmission to the office of PFSA. Report of PFSA Ex.PE is on record which clearly reveals that the samples were submitted by Fayyaz Ahmad SI (PW-1) on 15.01.2021, meaning thereby there is no delay in submission of sample parcels for chemical examination. Said sealed sample parcels were examined at PFSA and it were found confirmed as Charas. Zs It is not the case where complainant himself conducted the investigation. The investigation of this case was conducted by PW-1/Fayyaz Ahmad SI. The accused, therefore, had fair opportunity to put his stance before independent Investigating Officer. The accused did not pips anything on record to transpire that he in his first oversion recorded by the 1.0 after his arrest pleaded his innocence or examined any witness to the 1.0 to show his non-involvement in the instant case. PW-1/I.0 in his investigation found sufficient evidence against the accused. There is no malafide available on the record of the .0 that accused was falsely implicated in this case. Therefore, the evidence of Investigating Officer is worth | credence. &8 Judgment 18. The Control of Narcotic Substances Act is special enactment. No doubt the initial onus to prove isl, always on the prosecution but once this onus is | discharged; the accused has to prove his innocence. In this regard the Apex Court in Muhammad Imran’s case 2011 SCMR 1954 has stated the true purport of section 29 of CNSA in terms that: “It is pertinent to mention here that section 29 of CNSA, 1997 cast a duty upon the Court to presume in. trial under the Act that the accused has committed the offence under the Act unless contrary is proved, However, firstly, the prosecution had to establish the fact that the narcotic drugs were secured from the possession of the accused. If the prosecution proves the recovery of narcotics from the physical custody of the accused, then the burden to proving that he was not knowingly in possession of the articles is upon him. In the instant case, primarily the onus was upon the prosecution to prove that whatsoever was recovered, were narcotics drugs and the same were recovered from the possession of the appellant.” 19. The accused has taken plea in his statement u/s 342 Cr.P.C that he was arrested by two police officials sitting on motorcycle in front of Police Station Fateh Sher when he was refilling patrol in his motorcycle from petrol pump situated opposite to Police Station. Neither accused himself appeared before the court u/s 340(2) Cr.PC nor he has produced any other person to support his stance. Accused has not produced CCTV footage of the petrol pump to substantiate his plea nor applied before any forum to get CCTV footage to prove his plea. Accused has also taken plea that SHO promised to his neighbourers torelease him after investigation regarding _ stolen \ motorcycle but accused has not produced his any neighbourer to substantiate his plea. The accused has not Produced any solid evidence from which it could be inferred that he has been falsely involved in this case. Therefore, the plea taken by the accused is dismissed. 20. The nutshell of my above discussion is that all the witnesses corroborated each other on all material particulars as far as date, time, place, search, recovery of contraband substance, identification of the accused, preparation of samples and its dispatch to the office of Chemical Examiner and their testimony could not be shattered during the test of cross-examination. The contraband substance recovered remained intact till its samples were delivered in the office of PFSA. The report of PFSA Ex.PE proves that the substance recovered is Charas. The accused has failed to prove his innocence by producing any concrete defence evidence or to substantiate his defence plea taken in his statement u/s 342 Cr.P.C. In view of recovery of huge quantity, it can safely observe that there is no possibility of false implication of the accused in the offence entailing stringent punishment, especially in absence of any proven enmity. In view of afore mentioned reasons, I hold that prosecution has successfully proved the charge iw 9 (c) CNSA against present accused. Therefore, Bécused Abbas Ali is convicted under section 9(c) of CNSA. 21. As far as question of sentence is concerned, in this regard guidance is taken from esteemed judgment titled “Ghulam Murtaza and another v. The State” (PLD 2009 Lahore 362). As per sentencing guidelines laid in the said judgment, convict is sentenced to 05-years and 06-Months rigorous imprisonment along with fine of Rs.25000/-. In case of default of payment of fine, convict will further undergo O5-months and 15-days : LpJadu simple imprisonment. The convict is also given the benefit of Sec.382-B Cr.PC. Copy of this judgment is“* given to convict free of cost. Convict is also informed that he may file appeal against his conviction within the period of thirty days. Convict is present in custody; he is sent back to Central Jail Sahiwal to carry out the sentence awarded to him. In this regard warrant of commitment be issued to Superintendent Central Jail Sahiwal. 22. The case property i.e. Charas P2 & P3 be destroyed and sale proceeds P-1/1-8 be confiscated in favour of state, after lapse of period of appeal or revision, if any. As far as motorcycle P4 is concerned, neither convict claimed his ownership nor anyone else filed application for superdari, therefore, the same be confiscated in favour of state, after expiry of period of appeal or revision, if any. Copy of this judgment be sent to District Public Prosecutor Sahiwal as required u/s 373 Cr.P.C. File be consigned to the record after its due completion. Announced: (Sardar Muhammag Iqtal Dogar) 39.07.2021 ADDL: SESSIONS. UDGE/MCTC, ij SAHIWAL. oT It is certified that this judgmentYcemprises of 10- pages and each page has been dictated by me. _ Sardar Muham: Yea Iqbal Dogar, ADDL: SESSIONS JUDGE/MCTC, SAHIWAL. 7 We"