Muhammad Noman VS The State

JUDGMENT SHEET

PESHAWAR HIGH COURT,

D.I.KHAN BENCH.

JUDICIAL DEPARTMENT

Cr.A No. 19-D of 2016

Muhammad Noman Vs.

The State.

Date of hearing. 24.05.2016, announced on 15.06.2016 Appellant-petitioner by Haji Muhammad Shakeel Advocate Respondent by Mr. Hashmatur Rehman Standing Counsel HAIDER ALI KHAN, J:- The appellant, Muhammad Noman, through the instant appeal has challenged his conviction and sentence recorded by the learned Judge Special Court (CNS) Peshawar vide judgment dated 27.02.2016, whereby he has been convicted under Section 9 (c) CNSA and sentenced to undergo for twelve years rigorous imprisonment alongwith fine of Rs.2,00,000/- in default of payment of fine, he shall further suffer simple imprisonment for two years.

2.The compendium facts leading to filing of instant appeal are that the complainant Naeem Khan S.I, had received information that accused Numan will traffic narcotics on motorcycle No.LYC924 from tribal area Khoi Bahara to his own area. The S.I Naeem Khan

alongwith police nafri placed surveillance near Parwa bus stop. Meanwhile a motorcycle spotted coming from Khoi Bahara side, which was intercepted. The accused having a white cloth packed bundle in his lap, which was opened and four packets of 1250 gram each, total 5 Killograms charas garda recovered. From body search of accused, Rs.600/- cash amount, one Q Mobile china, and photocopy of CNIC recovered. Motorcycle was also taken into possession vide recovery memo (Ex: PW 3/1).

Murasila (Ex:PW 3/2) to this effect was drafted and sent to the Police Station ANF, DIKhan which was culminated into registration of F.I.R (Ex: PW 1/1).

Accused was arrested vide card of arrest (Ex:PW-3/3).

The accused disclosed involvement of his father Muhammad Suleman in the business of narcotics, at which he was also arrested vide card of arrest (Ex:PW3/8). Section of law 14/15 CNSA was added vide document (Ex:PW 3/17). The IO prepared site plan (Ex:PW 3/5) and placed copy of F.S.L application (Ex:

PW 3⁄4) while F.S.L report is Ex:PW 3/15.

3.After completion of investigation challan (Ex:PW 3/16) was submitted against both accused and they were put to face the trial. Both the accused were formally charge sheeted to which they did not plead guilty and claimed trial. The prosecution in order to

substantiate the charge against the accused produced & examined four witnesses. After completion of prosecution evidence, accused were examined under S.342 Cr.P.C, wherein they professed their innocence.

They appeared as his own witness under S. 340 (2) Cr.P.C, but they did not produce their defence evidence.

The learned trial Court, after hearing the arguments of the parties convicted and sentenced the appellant, while acquitted the co-accused Muhammad Suleman, vide impugned judgment dated 27.02.2016. Hence this appeal.

4.Learned counsel for appellant argued that under the law the complainant was not authorized to investigate the case; that the place of occurrence was thickly populated area, but no private person was witnessed to the alleged occurrence; that as per story garda charas was recovered from appellant, which is not narcotics in its entirety; that the prosecution badly failed to prove case against the appellant, hence, he deserves to be acquitted by extending benefit of doubt.

5.In rebuttal learned AAG argued that huge quantity of charas was recovered from personal possession of the appellant, regarding which FSL report is in positive; that the appellant has previous history; that the complainant was having amply power to investigate the case; that prosecution has proved case against the

appellant beyond any shadow of doubt, hence, appellant has rightly been convicted and sentenced.

6.We have heard arguments of learned counsel for the appellant, AAG for the state and perused the record with their valuable assistance.

7.The contention of learned counsel for the appellant that under sections 21 and 22 of the Control of Narcotics Substances Act, 1997, Assistant Sub Inspector is not competent to register case under the said Act. In the instant case, accused was apprehended by Naeem Khan the then Sub inspector and on his report the instant case FIR was registered by Noroz Khan ASI. Hence, section 21 of CNSA has not been violated. Further the section 21 of the CNSA is directory and not mandatory. If any such violation is caused, it would be an irregularity which could be cured under section 537 Cr.PC and it would not cause any prejudice to the case of accused.

8.The marginal witnesses of recovery memo are unanimous about recovery of the same and other witnesses also support the prosecution version, despite lengthy cross-examination nothing favourable to the appellant has been brought on record. The objection of learned counsel for appellant to the effect that both the

official witnesses are police personal and no independent private witness has been cited in the recovery memo is misconceived, because in such like cases, general public (Private persons) would not indulge themselves due to the fear of enmity and to avoid agonies of protracted trial proceedings. In such like cases, police officials are as good witnesses as other witnesses, unless any ill will, grudge or enmity with the accused is shown on their part. Learned counsel for appellant could not point out any ill will, grudge or enmity with the police officials, which may suggest his false implication. Prosecution has proved the recovery from personal possession of the appellant.

Sample separated for chemical analysis carries positive report of FSL, which fully establishes that the recovered contraband were charas. The learned counsel for the appellant failed to point out any illegality or irregularity in the impugned finding of trial Court. The prosecution has succeeded to bring home guilt the appellant, thus, in the circumstances, this appeal is hereby dismissed. However, record depict that the appellant is a young boy of 24 years of age. Keeping in view very young age of the accused/ appellant his sentence of 12 years seems to be harsh, which is

hereby reduced to six years RI. Benefit of section 382- B Cr.PC extended in favour of appellant/ convict.

Announced.

Dt: 15 .06.2016. JUDGE

JUDGE