1. Arshad Mahmood Khan son of Muqarab Khan, Caste Hazara, resident of Mustafa Zai, Village Rajoua Sharif, Tehsil & District Abbotabad, presently in Lahore, appellant was involved in case F.I.R. No. 41 of 2010, dated 23.5.2010, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, registered at Police Station ANF, Lahore and was tried by the learned Judge, Special Court Control of Narcotics Substances, Lahore. The learned trial court seized with the matter in terms of judgment dated 14.11.2012 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo 08 years R.I. with fine of Rs.80,000/- and in case of default thereof, further undergo Simple Imprisonment for two months. Benefit of section 382-B of Cr.P.C. was also extended to him. The appellant has assailed his conviction through filing the instant appeal.
2. The prosecution story as alleged in the F.I.R (Ex.PA/1) lodged on the complaint (Ex.PA) of Imtiaz Ahmad Cheema, SHO (PW-3) is that on 23.5.2010 the high ups received spy information that the appellant is indulged in selling narcotics. On this information, raid was conducted at Main Gate, Race Club, Lahore where at 5.00 p.m. a person with blue shopper in his right hand came at the given address and started waiting customers at road side. The appellant was apprehended at the spot. On search, five (5) packets of Garda Charas were got recovered, however, on weighing each packet was 1200 grams, as such total Garda Charas was 6 kilograms. Out of the recovered “Charas” the complainant separated 10/10 grams from each packet for chemical analysis and prepared five sealed sample parcels. The remaining Charas (P/1) was also converted into sealed parcel which were taken into possession by the complainant through recovery memo (Ex.PC) which was attested by Noman Ghous (given up PW) and Azhar Hamesh (PW-4). On personal search of the accused/appellant, the complainant recovered Rs.50/- (P-2), photocopy of ID card (P-3), card race club (P-4) and mobile phone with sim (P-5) which were taken into possession vide memo Ex.PC which were also signed by the above said Noman Ghous and Azhar Hamesh, PWs. The complainant drafted complaint (Ex.PA) and sent the same through Arshad Sepoy to the Police Station for registration of the formal FIR (Exh.PA/1). The complainant recorded the statements of the PWs and also prepared site plan Ex.PD at the spot. The complainant handed over sample parcels and sealed parcel of recovered Charas along with other articles to Moharrar for safe custody. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C. and sent the same to the court of competent jurisdiction.
3. The learned trial court formally charge sheeted the appellant on 02.8.2010, to which the appellant pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as four witnesses. Imtiaz Ahmad Cheema, SHO (PW-3) is the complainant of the case as well as the Investigating Officer of the case. Sajjad Ahmad, C/Naib Moharrar (PW-2) deposed that on 23.5.2010 he performed his duty as Moharrar and received complaint (Ex.PA) sent by the complainant and on the basis of which he chalked out F.I.R. (Ex.PA/1). On the same day, Sajjad Ahmad (PW-2) further deposed that said SI also gave me 5 sealed sample parcels, said to contain Heroin for its onward transmission in the office of Chemical Examiner and one sealed parcel of Heroin for keeping the same in Malkhana. On 25.5.2010 Sajjad Ahmad (PW-2) further deposed that he handed over 5 sealed sample parcels, said to contain Heroin along with relevant documents to Muhammad Saleem, HC for doing the needful with seals intact. Muhammad Saleem, HC (PW-1) deposed that on 25.5.2010, Sajjad Ahmad, Naib Moharrar (PW-2) handed over to him 05 sealed sample parcels, said to contain Garda Charas along with relevant papers for onward transmission to the office of Chemical Examiner intact. Azhar Hamesh, SI (PW-4) along with another Nouman Ghous, PW are the witnesses of the recovery memo Ex.PB and Ex.PC.
4. On 25.01.2012, the learned Special Prosecutor vide his statement gave up PW Nouman Ghous as unnecessary and closed the prosecution evidence after tendering the report of Chemical Examiner (Ex.PE).
5. Statement of the appellant was examined under Section 342 Cr.P.C, on 06.02.2012 wherein he opted to lead defence evidence and also to appear as his own witness in terms of Section 340 (2) Cr.P.C in disproof of allegations levelled against him and while replying to a question that why this case against him and why the PWs have deposed against him, the appellant made the following deposition:
“I have been falsely involved in this case. I am employee as waiter of Race Course Club cafeteria. ANF officials went there to arrest one Khushi and they could not find him out and with malafide intention, arrested me. Nothing was recovered from my possession. Witnesses deposed against me, due to subordinates of ANF.”
6. In defence, the appellant produced Ghulam Mustafa Khan, DW-1 and Zahid Iqbal, DW-2 but vide his separate statement dated 03.10.2012 opted not to appear as his own witness in terms of Section 340 (2) Cr.P.C in disproof of allegations levelled against him.
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