IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Present :

Mr. Justice Syed Hassan Azhar Rizvi,

Mr. Justice Rasheed Ahmed Soomro

Cr. Jail Appeal No. D-109 of 2015

Mst. Haseena Baloch w/o Mohammad Saleem Baloach,

Now confined in Juvenile & Women Prison

District Prison, Sukkur. ……………….. Applicant

Versus

The State ……………… Respndent

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Present :

Mr. Justice Syed Hassan Azhar Rizvi,

Mr. Justice Rasheed Ahmed Soomro

Cr. Jail Appeal No. D-109 of 2015

Mst. Haseena Baloch

Versus

The State

Date of hearing	06-04-2017
Date of judgment	13.04.2017
The appellant	Mst. Haseena Baloch Through Mr. Muhammad Arif Malik, Advocate
Respondent	The State Through Mr. Saleem Akhtar Buriro, Additional Prosecutor General.

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JUDGMENT

RASHEED AHMED SOOMRO, J. The appellant, namely, Mst. Haseena was tried by the learned Special Judge (CNS) Sukkur in Special Case No.53/2014 for the offences under Sections 6,9(c), 14 & 15 of the Control of Narcotic Substances, Act, 1997, registered at Excise Police Station Sukkur vide Crime No. 01/2014, and the appellant was convicted under Sections 9(c) of Control of Narcotics Substances Act, 1997 and sentenced to suffer Rigorious Imprisonment for eight years and to pay fine of Rs.70,000/= in default thereof to suffer simple imprisonment for eight months more with benefit of section 382-B Cr.P.C.

2. Brief facts of the prosecution case as narrated in the F.I.R. are that on 29.06.2014 the complainant Excise Inspector Bashir Ahmed Pathan of Police Station Excise Sukkur received the spy information. He along with ES Abdul Khalique, EC Tahir Hussain, EC Moula Bux, EC Zubair Ahmed, ED Fakhruddin including lady Excise Constable Sodhi left Excise Police Station, vide roznamcha entry No.01 at 01.00 p.m in official vehicle bearing No.GSB-542 along with investigation kit and proceeded towards pointed place at City Point Bus Stand Sukkur city. After some movement, they noticed one lady and a boy coming from eastern side. The lady had one big purse of black coloured with her, who apprehended along with purse. They tried to get private mashir but due to non-availability of private persons, EC Moula Bux and ED Fakhruddin were acted as mashirs and they were enquired about their names and addresses to which lady disclosed her name as Mst. Haseena w/o Muhammad Saleem Balouch R/o H.No.204 Baloch Colony Orangi town, Karachi, while the boy disclosed his name to be Usman s/o Shafi Muhammad, by caste Mugheri r/o Rice Canal Brohi Phatak Larkana. Mst. Haseena was got bodily searched through lady Constable Sodhi during which a cash amount of Rs.1200/- in shape of currency notes of Rs.100/-, and her original CNIC were secured, thereafter, her purse was checked and found contained 04 (four) khaki coloured plastic bags which were found contained heroin in each bag while nothing was recovered from the boy Usman. They were formally arrested and the heroin powder was weighed and each plastic thelli became one kilogram total four kilograms of heroin powder. Out of entire recovered heroin powder, 100 grams from each plastic bag, total 400 grams, was separated and sealed separately in four white papers for chemical analysis, while the remaining 900/900 grams were also sealed in same four khaki plastic bags and sealed. Such mashirnama was prepared at the spot, which was read over to the mashirs, they admitted the same to be correct and put their signatures. Thereafter, the accused and the case property were brought at the Police Station Excise Sukkur Town where such F.I.R. was registered.

3. The trial court framed charge against the accused at Ex.2. The accused Mst. Haseena pleaded not guilty and claimed to be tried.

4. In order to substantiate the charge, the prosecution examined P.W-I complainant Excise Inspector Bashir Ahmed at Ex.05, who produced attested copy of entry of departure, mashirnama of arrest and recovery, attested copy of entry of arrival back at Police Station, F.I.R, letter regarding sending the sample to the Chemical Examiner and it's report at Exhibits.5-A to 5-F. The prosecution further examined PW-2 EC Moula Bux at Ex.06, thereafter, learned SPP for the State closed the side of prosecution, vide statement as Ex.07.

5. The statement of accused was recorded under Section 342 Cr.P.C. at Ex.8, in which she denied the allegations of the prosecution leveled against her and claimed her innocence. However, neither she has examined herself on oath nor she led any sort of evidence in her defence.

6. Mr. Muhammad Arif Malik, learned counsel for the appellant has argued that there are material contradictions in the evidence of complainant/I.O and mashir that within a shortest period of three hours of the proceedings all the proceedings from leaving the Police Station to lodging of the FIR was completed which makes whole the prosecution case doubtful; the complainant has also conducted investigation of this case which is not in accordance with law. He next argued that police has violated Section 103 Cr.P.C. lastly he has prayed for setting aside the impugned judgment and acquittal of the appellant.

7. Conversely the learned Additional Prosecutor General has stated that the contradictions pointed out by the learned counsel for the appellant are minor in nature; that the witnesses have fully supported the case; that the Chemical analyzer’s report is in positive; the complainant is competent to investigate the case; he has supported the impugned judgment passed by the trial court.

8. We have considered the above contentions of learned Counsel for the parties and have gone through the entire evidence minutely.

9. The contention of learned defence counsel that though the alleged incident has taken place in broad day time and place of incident is also situated in heart of Sukkur city but no private person was associated to act as mashir of arrest and recovery is concerned; for which the contention of learned defence counsel could be relevant with reference to general law contained in section 103 Cr.P.C but could not be so under C.N.S Act, 1997 wherein Section 25 of the Act had expressly excluded application of section 103 Cr.P.C to the cases registered under the Act. It has been repeatedly held by the Honourable Supreme Court that police officials are as good witnesses as any other private witness unless it is proved that they had personal grudge against the accused and the police officials are equally good witnesses and could be relied upon if their testimony remains un-shattered during cross examination. Nothing had been brought on record that any of the witness was having any malice against the accused. The testimony of the prosecution witnesses cannot be discarded simply on the ground that it has come from the police officials. This contention of the learned counsel in view of the above could not prevail, as there is no evidence on the record to substantiate the allegations of accused that the complainant and P.Ws had enmity with her or had any malice towards her and due to that malice she was falsely implicated in this case. Reliance in this contest can be made to the cases of Naseer Ahmed v. The State (2004 SCMR 1361), Aala Muhammad and another vs. The State (2008 SCMR 649), Zulfiqar Ahmed v. The State (2006 SCMR 800) and Muhammad Khan vs. The State (2008 SCMR 1616).

10. The Honourable Supreme Court in case of Muhammad Khan (supra) has held as under;

“The prosecution in order to prove the factum of apprehension of the petitioner and recovery of ‘Charas’ from his possession, has produced two witnesses namely Inspector Badar Munir (P.W.4) and Constable Muhammad Iqbal (P.W.5). Both these witnesses are independent and disinterested witnesses and have unanimously supported the prosecution version regarding the raid conducted at the hotel of petitioner and recovery of ‘Charas’ from his possession at the relevant time. They are as good and respectable as other public witnesses and their statements cannot be discarded merely for the reason that they were the police employees.”

11. In the case of Aala Muhammad (supra) following observation has been made by the Honourable Supreme Court:-

“Prosecution witnesses present at the place of recovery of Charas from vehicle under the control/being driven by the accused were police employees who were competent witnesses like any other independent witness--- Evidence of police witnesses could not be discarded merely for the reason that they were police employees.”

12. The Honourable Supreme Court of Pakistan in the case of Zulfiqar Ahmed (supra) has also observed as follows:-

“Section 103, Cr.P.C. having been specifically excluded under the provisions of Control of Narcotic Substances Act, 1997, non-citing of any witness from the public was not fatal to the prosecution case. Prosecution did not claim that the heroin at the time of recovery was contained in separate packets, rather the same was alleged to have been contained in a shopping bag and only one sample of one gram heroin, therefore, was sufficient for chemical analysis."

13. In the case of Naseer Ahmed (supra) following dicta has been laid down by the Honourable Supreme Court:-

“These P.Ws. as well as other P.Ws have fully stood the text of cross-examination and defence was not able to put any dent in the prosecution case. It has been held by this Court, time and again that the police officials are as good witnesses as others, and their evidence on this score alone should not be discarded. Now-a-days, drug trafficking has created dangerous problems for the society and the country at large. This menace should be curbed so that people in society would get relief.”

14. Learned counsel for the appellant has further contended that only 400 grams heroin powder out of the total seized Heroin Powder has been separated and sent to the chemical examiner for analysis and nothing was available on record to show that remaining material was Heroin powder or something else. This contention of the learned counsel for the appellant does not carry any legal weight. It is not the requirement of law that entire contraband Heroin powder may be sent for chemical analysis. During the trial, the appellant did not move an application to learned trial court for getting the remaining quantity of narcotics for examination. Even the recovery witnesses were not suggested that the remaining Heroin Powder was not the Heroin Powder. In this regard, the Honourable Supreme Court of Pakistan in the case of Muhammad Khan (supra) has held as under:-

“During the trial, accused did not move the Trial Court for getting the remaining quantity of narcotic examined by Chemical Examiner, nor the recovery witnesses were even suggested that the remaining bulk was not the “Charas”---Chemical Examiner’s report had corroborated the prosecution evidence that the material recovered from the accused was “Charas”---Mere assertion of accused that he had been falsely roped in the case, without a positive attempt on his part to substantiate the same, was of no consequence and was an afterthought.”

15. Recovery of 4000 grams of Heroin Powder from the possession of the appellant is fully proved from the evidence of complainant Inspector Bashir Ahmed Pathan and PW-2 EC Moula Bux. The report of the Chemical Examiner (Ex-6-A) further lends corroboration to the evidence of the complainant and P.Ws that the material recovered from the appellant was heroin powder.

16. Adverting to the appellant’s plea that she is resident of Balouch Colony, Orangi Town, Karachi; on the day of incident she was ill and came to Sukkur for getting her treatment, while on the way she was apprehended by the police and then involved her in this case falsely on account of her failure to pay them money, we feel that plea is an afterthought and has not been substantiated by the evidence. The mere assertion of the appellant that she has been falsely roped in the case, without a positive attempt on her part to substantiate the same, is of no consequence.

17. Consequently, we do not find any justification to interfere with the conviction and sentence recorded by the trial court against the appellant/accused.

18. As sequel to the discussion made hereinabove, the instant criminal jail appeal is dismissed.

Judge

Sukkur

Dated:

Abdul Salam/P.A