IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 142 of 2000
Present: Mr. Justice Rahmat Hussain Jafferi
Justice Mrs. Yasmin Abbasey, JJ
Date of Hg : 29.11.2006
Appellant : Abdul Majeed present in person.
Respondent : The State through Mr. S. Ashfaque Hussain Rizvi, Special Prosecutor for A.N.F.
RAHMAT HUSSAIN JAFFERI, J: Brief facts giving rise to the present appeal are that on 28.1.1997 at 05.25 a.m. the complainant PW-4 Inspector Raees Ahmed intercepted Suzuki Van bearing registration No.KC-9481 in front of Ghandi Garden. In the beginning the driver of the Van accelerated van, but it was chased and then it was stopped. On enquiry driver disclosed his name as Abdul Majeed (the appellant). The complainant searched the Suzuki van and found secrete cavities in the roof of the van, from which 100 kilograms of charras were secured. The complainant prepared five samples of 20 grams each and sealed them at the spot. The appellant was arrested and such mashirnama was prepared. The appellant also took the police party to Liquatabad in a house of Yousuf from where 50 kilograms of charras were secured. A separate mashirnama was prepared for the said recovery. The complainant brought the appellant and the properties to the police station where the FIR was lodged. The police after usual investigation challaned the appellant in the Court.
The Learned Special Judge C.N.S. Karachi tried the appellant, convicted him for offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to suffer imprisonment for life and fine of Rs.500,000/- or in default thereof to suffer R.I. for one year with benefit of Section 382-B, Cr.P.C., whereas the co-accused Yousuf Ali was acquitted under the impugned Judgment dated 30.5.2000.
We have heard the appellant in person, Special Prosecutor for ANF and perused the record of this case very carefully.
The appellant has stated that the owner of the Suzuki Van directed him to take the vehicle, but on the way he was intercepted by the police and the charras was secured from the van. He has further stated that he did not know whether the owner had put the charras in the vehicle, but he is victim of circumstances, therefore, he has requested that lenient view may be taken in awarding the sentence.
The learned Special Prosecutor has stated that the evidence led by the prosecution is sufficient to convict the appellant; that the appellant has admitted his presence in the vehicle at the time of raid and recovery of charras; that he was driver of the vehicle, therefore, he was responsible of the recovery of charras; that the offence would fall under proviso to Section 9(c) of the Control of Narcotic Substances Act, 1997 and the minimum sentence provided thereunder is life imprisonment, therefore, the sentence cannot be reduced.
We have given due consideration to the arguments, gone through the evidence with the assistance of learned Special Prosecutor and found that the case of the prosecution rests upon two witnesses and Chemical Analyzer’s report. Both the witnesses viz. mashir PW-2 SI Sajjad Ali and the complainant PW-4 Inspector Raees Ahmed gave the same details of the incident as mentioned in the earlier part of the judgment, therefore, need not to be repeated. In their evidence they specifically stated that after stopping the Suzuki Van the appellant was found driving the van and from its search 100 kilograms of charras were secured from the secrete cavity made in the roof of the Van. Both the witnesses were thoroughly cross-examined, but nothing came on record to discard their evidence. However, they admitted that one private witness Noor Alam was second mashir in whose presence recovery was made. The record further reveals that the efforts were made to procure the attendance of private witness Noor Alam, but all the efforts were failed because Noor Alam had shifted to some unknown place in FATA. The trial Court recorded the statement of Process Server CW-1 Head-Constable Naeem Khan, who gave the statement on oath that witness Noor Alam had permanently shifted to some unknown place in FATA. Thus, the prosecution was helpless in examining the private mashir, as such, no adverse inference can be taken in non-examination of the private witness.
We have also examined the Chemical Analyzer’s report and found that there is slight different between the weight as according to the witnesses, they drawn 20 grams of charras and prepared five packets, but when the Chemical Analyzer examined the charras its net weight about 23 or 24 grams in each packet. This discrepancy is perhaps due to the reason that the Investigation Officer had old scale, whereas the Chemical Analyzer had computerized and sophisticated scale, where the exact weight of the property would come, hence the said discrepancy does not affect the prosecution’s case.
The appellant before us has also admitted that he was driving the vehicle at the time of raid and the police had secured the charras from the vehicle, but he was unaware of the said facts when he took the vehicle from its owner. Before the trial Court he took completely different story. No evidence was led to prove the defence.
After considering the material available on the record, we are of the considered view that the prosecution has proved the case against the appellant beyond any reasonable doubt, therefore, the impugned judgment does not require any interference. Hence, the appeal is dismissed.
Karachi
Dated __.12.2006 JUDGE
JUDGE