Arif ur Rehman vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Cr.A No: 305-P 2012

JUDGMENT

Date of hearing..............................................................

Appellant(s)/Petitioner (s).................................................

Respondent (s).............................................................

QALANDAR ALI KHAN,J:- This appeal under section 410 Cr.PC read with Section 48 CNSA by Arif-ur-Rehman, appellant, is directed against the order and judgment of learned Additional Sessions Judge-IV/Judge Special Court, Peshawar, dated 29.05.2012, whereby, the appellant was convicted and sentenced under Section 9-C CNSA 1997 to imprisonment for life along with fine of Rs.50,000/- or in default of payment of fine to further 6 months S.I.

2.The facts, narrated in FIR No.495 dated 07.12.2010 under Section 9-C CNSA, registered in Police Station Sarband,

Peshawar, would reveal recovery of 16 kgs “chars” in 16 packets from the car being driven by appellant/accused and also occupied by a woman who disclosed her name as Mst Nargis widow of Farman resident of Hoti Bazar Mardan. After registration of the case, investigation was conducted, where-after challan was submitted, leading to trial of the appellant/accused as well as female co- accused, but when the case was fixed for order, the female co-accused absented herself and she was therefore, proceeded against under section 512 Cr.PC. After hearing the learned Deputy Public Prosecutor and also providing opportunity of hearing to the learned counsel for appellant/accused, the learned Additional Sessions Judge- IV/Judge Special Court, Peshawar held that the prosecution had been able to prove its case against the accused beyond reasonable doubt, therefore, the appellant/accused was convicted under Section 9-C CNSA and

sentenced to imprisonment for life with fine of Rs.50,000/- or in default of payment of fine to further 6 months S.I. Vide the same judgment/order dated 29.05.2012, whereby the learned Additional Sessions Judge- IV/Judge Special Court, Peshawar declared absconding accused Mst Nargis as proclaimed offender.

3.Arguments of learned counsel for appellant/accused and learned AAG heard and record perused.

4.It is in the evidence that police party, headed by the complainant, Abdul Qayyum S.I Police Station Sarband (PW5), searched the car on suspicion and recovered “chars” weighing 16 kgs from rear seat and engine of the car driven by the appellant/accused and also occupied by female co-accused Mst Nargis. After recovery, the complainant S.I separated samples weighing 5/5 grams from each of the 16 recovered packets, which were sealed on the spot in the presence of marginal

witnesses to the recovery memo and the remaining “chars” was also sealed separately on the spot in the same manner. Samples were dispatched to the FSL, wherefrom report was received in the affirmative, thereby confirming recovery of “chars” from the possession of appellant/accused and the co-accused.

5.The above facts were further re-inforced by complainant, marginal witnesses to the recovery memo, investigating officer and formal witnesses in their statements before the Court; and it can be safely said that the testimony could not be seriously challenged despite searching cross examination by the defence.

6.It was only after realization on the part of the defence that prosecution has been able to bring home charge against the appellant/accused that the latter took the defence that he was owner of Taj General Store near Police Post Sarband, wherefrom complainant S.I used to buy merchandise

and on that account an amount of Rs.47000/- was accumulated against him and when the appellant/accused demanded payment of the said amount, the complainant was offended and implicated the appellant/accused in the false case of recovery of “chars” from a car parked nearby the shop owned by the appellant/accused. In support of this plea, appellant/accused produced Islam Gul (DW1) and also furnished Photographs of his General Store and blank cash memo book; but he failed to discharge onus of proving outstanding amount against the complainant by production of record, including register etc; containing details of purchases made by the complainant from his shop. It is also something beyond comprehension that such a huge amount of Rs.47000/- was allegedly accumulated against the complainant but no record was maintained about the sale/purchase, nor the appellant/accused complained about nonpayment of the outstanding amount by

the complainant to the concerned authorities in the police department. It was, rather, for the first time that the matter came to surface in the statement of the accused under Section 342 Cr.PC. It is, indeed, unimaginable that the police would falsely implicate a person in a case of recovery of narcotics of such a huge quantity only to punish him for demanding his outstanding money; and further in order to strengthen their case, would implicate a female accused, who has been declared proclaimed offender after her absconsion at the fag end of trial.

7.The recovery of four packets containing 4 kgs “chars” from the engine of the car, where the same was stated to be exposed to heat and melting, and some delay in sending the samples to the FSL would lose significance in the face of explanation offered by the PWs in their statements and absence of evidence showing tampering with or substitution of the samples before their receipt in the FSL.

8.Consequently, the learned Additional Sessions Judge-IV/Judge Special Court, Peshawar, had overwhelming evidence before him to hold accused guilty of the charge and convict and sentence him to imprisonment for life and fine of Rs.50,000/-.

While upholding the judgment of the learned Additional Sessions Judge-IV/Judge Special Court, Peshawar as well as conviction and sentence of the appellant/accused thereby the appeal is dismissed.

Announced:

JUDGE

JUDGE