Judgment sheet.
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.
Cr.Appeal.No.D- 133 of 2016
Cr.Appeal.No.D-06 of 2017
Cr.Jail.Appeal.No.D- 07 of 2017
Present:
Mr. Justice Muhammad Iqbal Mahar.
Mr. Justice Mahmmood A Khan.
Date of hearing:- 17.10.2017.
Date of Judgment:- 17.10.2017.
Appellant Nadeem through: Mr. Mian Taj Muhammad Keerio, Advocate.
Appellant Naukar through: Mr. Zahid Hussain Rajput, Advocate.
The State through: Mr. Shahzado Saleem Nahiyoon, DPG.
J U D G M E N T.
MUHAMMAD IQBAL MAHAR, J- By this single judgment, we intend to dispose of above captioned two criminal appeals and one jail appeal as the same are arising out from one and the same judgment. The appellants have challenged the judgment dated 20.12.2016 passed by learned Judge Special Court for Narcotics/Sessions Judge Badin in Special Case No.21 of 2016 [Re: State v. Nadeem and another] arising out of Crime No.67/2016 of P.S. Talhar, offence under section 9 (c), Control of Narcotic Substances Act, 1997, whereby they were convicted and sentenced to suffer R.I. for 10 years each and to pay fine of Rs.100,000/- (one lac) each and in case of default thereof, to suffer R.I for three months more. However benefit of section 382-B, Cr.P.C. was extended to them.
2. The facts in nut-shell are that on 27.06.2016 complainant, SIP, Muhammad Ayoob alongwith his subordinate staff, was on patrolling duty vide entry No.26. During patrolling he received spy information that appellants were coming on Motorcycle while taking Charas. The complainant party immediately rushed towards pointed place and saw two persons coming on Motor Cycle. The complainant party signalled them to stop, who stopped their Motorcycle and tried to run away but were apprehended by the police. The complainant party recovered one plastic thelhi containing Charas, which was weighed and became 9000 grams. On inquiry the person who was driving Motorcycle disclosed his name as Nadeem and the other as Naukar. The complainant also recovered two currency notes of Rs 50/ from appellant Nadeem and two notes of Rs. 100/ from appellant Naukar. The appellants could not produce any document of Motorcycle, hence same was secured u/s 550 Cr.P.C. Due to non-availability of private persons, complainant sealed the property and prepared mashirnama in presence of police mashirs and thereafter brought the accused and case property at police station, where he lodged F.I.R on behalf of the State.
3. After usual investigation, challan was submitted before the Court of learned Special Judge, who after completing legal formalities framed the charge against the appellants for offence punishable u/s 9(c) Control of Narcotic Substances Act, 1997 at Ex.2, to which they pleaded not guilty and claimed their trial.
4. At the trial, prosecution examined complainant Muhammad Ayoob at Ex.5, who produced departure and arrival entries, mashirnama of arrest and recovery, FIR, chemical report, previous record of appellants at Ex. 5-A to Ex.5-I, mashir PC Muhammad Jafar at Ex.6 and then learned D.P.P closed the side of prosecution vide statement at Ex.7.
5. Statements of appellants/accused were recorded u/s 342 Cr.P.C at Ex.8 and Ex.9 in which they denied the allegations levelled against them and claimed their innocence. They produced some documents but neither they examined themselves on oath nor led any evidence in defence. The learned trial Court after hearing the counsel for the parties and appraising the evidence convicted the appellants as stated above, hence they preferred captioned appeals.
6. Learned counsel for the appellant Nadeem contended that the appellants are innocent and they have falsely been involved in this case by the complainant due to enmity; that the impugned judgment passed by learned Special Judge is contrary to law and facts of the case; that there are contradictions in FIR and mashirnama of arrest and recovery and in evidence of prosecution witnesses; that the number of police letter does not appear in chemical report and there is delay of five days in sending the parcel to Chemical Examiner; that all the PWs are police officials and not a single private person was associated in recovery proceedings though the police party proceeded towards the place of incident on advance information; that the complainant has acted as IO which is against the law, therefore, case is not free from doubt and appellants are entitled for acquittal. In support of his contentions he relied upon case of SHAFIULLAH v. THE STATE (2007 Y.L.R 3087).
6. Learned counsel for appellant Naukar adopted the arguments of learned counsel for appellant Nadeem and further added that no case of like nature has been registered against the appellant.
7. Conversely, learned DPG while refuting the contentions of learned counsel for the appellants submitted that huge quantity of Charas was recovered from the possession of appellants which, being costly cannot be foisted upon them; that no enmity with the complainant has been proved by the appellants; that whole property was sent to Laboratory and the report is positive; that the prosecution has succeeded to prove its case against the appellants beyond reasonable doubt. He, however, conceded that the sentence awarded to appellants is not in accordance with sentencing policy given in case of Ghulam Murtaza V. The State and Ameer Zeb V. The State and he has no objection if the sentence is reduced in the light aforesaid cases.
8. We have heard the arguments of learned counsel for the appellants, learned DPG for the State and have perused the record minutely.
9. Perusal of record reveals that the appellants were apprehended while they were going on one Unique Motorcycle and 9000 grams of Charas was recovered from their possession. The prosecution examined complainant SIP, Muhammad Ayoob and mashir PC, Muhammad Jafar, who fully supported the prosecution case and corroborated the statements of each others. They are consistent on the material points that the appellants were arrested at spot, Charas and Motorcycle were recovered from their possession, the case property was sealed at spot in presence of mashirs and was sent to Laboratory and the report is positive. The complainant produced departure and arrival entries in evidence at the time of his examination. Despite lengthy cross examination by learned counsel for the appellants nothing could be brought on record adverse to the case of prosecution. No doubt some minor contradictions have come on record due to lengthy cross examination but the same can be ignored. In this respect reliance can be placed upon case of Zulfiqar Ahmed and another V. The State (2012 SCMR 492).
10. Report of Chemical Examiner reveals that the seals of parcel were perfect as per copy sent by police and the parcel was containing Charas. The report has been produced in evidence by complainant at Ex.5-H.
11. As for as the contention raised by learned counsel for appellants that the complainant party had proceeded towards the place of incident on advance information but no private person was joined in recovery proceedings, it is stated that provision of S-25 of Control of Narcotic Substance Act, 1997, excludes the application of S-103 Cr.P.C, in narcotics cases, secondly the complainant party was on patrolling duty when they received information and immediately rushed towards the pointed place where no private person was available, therefore the contention has no force. Furthermore, it has been held by honourable Supreme Court in many cases that the Police officials are good witnesses as any other public witness unless the animosity is proved against them, therefore, evidence of police officials could not be discarded merely on the ground that they were police officials. In this respect we are fortified by case of Nur Hassan V. The State (1993 SCMR 1608).
12. So for as the contention of learned counsel for the appellants that number of police letter does not transpire in chemical report and there is delay in sending the parcel to Chemical Examiner is concerned, apparently letter No.CR-67/16 is written in the report and there appears no delay in sending the parcel to the Chemical Examiner for the reason that the recovery was made from the appellants on 27.6.2016 at 1830 hours and the complainant sought permission from his high ups and then sent the parcel to Chemical Examiner on 01.07.2016, therefore, it appears that reasonable explanation has been furnished by the complainant. The case law relied upon by learned counsel for the appellants has no relevancy with the facts of instant case as in the cited case, delay in sending the sample was not explained.
13. In view of above discussion we are convinced that the prosecution has successfully proved its case against the appellants beyond any reasonable doubt, therefore captioned appeals being devoid of merits are dismissed. However it appears that the conviction and sentence awarded to the appellants by learned trial Court is not in accordance with schedule given in case of Ghulam Murtaza V. The State and upheld by honourable Supreme Court in case of Ameer Zeb V. The State, therefore while following the yardstick of sentence provided therein we, dismiss these appeals and modify the sentence. As per prosecution case 9000 grams of charas was recovered from the possession of both the appellants, therefore, their sentence is reduced to 7 years and six months with fine of Rs. 35,000/- each and in case of default thereof to suffer S.I for 3 months and 15 days. It is made clear that benefit of section 382-B Cr.P.C has already been extended to the appellants by learned trial Court.
14. With above modification captioned appeals are disposed of.
JUDGE
JUDGE.