IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Appeal No. D- 70 of 2023.

Present:

Mr. Justice Muhammad Saleem Jessar.

Mr. Justice Khadim Hussain Soomro.

Appellant: Ahmed Ali Solangi, through Mr. Muhammad Afzal Jagirani, Advocate.

Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing: 29.11.2023.

Date of judgment: 29.11.2023.

Judgment

Muhammad Saleem Jessar, J: Through instant appeal, appellant Ahmed Ali son of Muhammad Arif Solangi has impugned the judgment dated 02.10.2023 passed by the Court of Special Judge (CNS), Jacobabad, in Special Case No. 14 of 2023, Re; State v. Ahmed Ali, arisen out of F.I.R No. 48 of 2022 of P.S Airport, Jacobabad, under Section 9 (c) of Control of Narcotic Substances Act, 1997, whereby he was convicted under Section 9 (1)(3)(c) of Control of Narcotic Substances (Amendment) Act, 2022, and sentenced to suffer R.I for nine years and to pay fine of Rs.80,000/- and default in payment of fine to suffer further S.I for one year. However, the appellant has been extended benefit of Section 382-B Cr.P.C.

2. The facts of prosecution case as depicted from para 2 of the impugned judgment, reads as under:

“That on 28.10.2022 at 08.00 hours, a police party from P.S Airport Jacobabad, led by complainant ASI Sadaruddin Magsi, apprehended the accused, Ahmed Ali Solangi, near “Dargah Qaim Shah Bukhari” Jacobabad. Upon his arrest, 1300 grams of charas, split into two large pieces and one small piece and contained with a black plastic shopper, were seized from his possession. Subsequently, the accused was charged under Section 9 (c) of Control of Narcotic Substances Act, 1997, for the alleged offense.”

3. The learned trial Court framed the charge against appellant at Ex.04, to which he pleaded not guilty and claimed to be tried. Then, in order to prove the charge against the appellant, the prosecution examined PW/ Mashir PC Zubair Ahmed at Ex.5, who produced the mashirnama of arrest, recovery and inspection of vardat. PW-2 (I.O of the case) SIP Shahzado Pechuho was examined at Ex.6, who produced copy of entries No.12 and 162 of Register-19, letter for permission issued by him and letter according such permission issued by SSP and copies of Entries No.4 and 20 and chemical report. PW-3 complainant ASI Sadaruddin was examined at Ex.7, who produced copies of Entries No.40 and 6 and copy of F.I.R. PW-4 PC Riaz Ahmed was examined at Ex.8 and lastly PW-5 WHC Anwar Ali was examined at Ex.9. Thereafter, learned Prosecutor closed the side of prosecution vide statement Ex.10.

4. The statement of appellant/ accused was recorded under Section 342 Cr.P.C at Ex.11, in which he denied the allegations of the prosecution leveled against him. He claimed his innocence and false implication in this case by police. However, he did not examine himself on oath, nor led any evidence in his defence.

5. After hearing the counsel for the parties, the trial Court convicted and sentenced the appellant as mentioned in paragraph No.1 of this judgment.

6. Learned counsel for the appellant mainly argued that the judgment passed by the trial Court is much against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial, consists upon only police officials, which is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellant. Per learned counsel there is delay in sending the alleged samples to Chemical Examiner, therefore, tampering with the same cannot be ruled out. It is further contended by learned counsel that the trial Court has erred in concluding that the alleged recovery was effected from the accused in the mode and fashion described by the prosecution and that there are some important and vital contradictions in the evidence of the prosecution witnesses, which create doubt. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.

7. Learned D.P.G. opposed the grant of appeal, on the ground that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial and documentary evidence.

8. We have considered above contentions of the learned counsel for the appellant and learned Deputy Prosecutor General and have gone through the entire evidence very carefully.

9. A careful perusal of the evidence of witnesses, we have found that they have constituted an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband. They are in comfortable unison on all the salient features regarding interception of the charas as well as all the steps taken subsequently. No enmity or malafide on the part of the police was alleged or proved by the appellant. Prosecution has also established their case on the point of safe custody and safe transmission through P.W/ PC Riaz Ahmed and WHC Anwar Ali, as they produced copies of entries including entry of book of register-19, as well as R.C. We have also examined the report of Chemical Examiner available on the record and have also found that it fully corroborates the evidence of both the witnesses, whose stand is in nexus with the chemical examiner’s report. The prosecution witnesses have supported each other and no material contradiction was pointed out in their testimonies. No dent was created in the credibility of the prosecution witnesses. The simple defence plea taken by the appellant, does not appeal to a prudent mind. When the defence plea is juxtaposed with the prosecution version, the prosecution version inspires more confidence, as against defence plea.

10. However, there remains only one point to be considered by us that the case against the accused is to be proved by the prosecution by establishing that the accused was involved in the matter of specific quantity of narcotic substance, of which allegation has been leveled. As per provisions of the Control of Narcotic Substances Act, 1997, when the punishment is provided on the basis of quantum of recovery of narcotic then it should be main criteria for the prosecution to establish that entire recovered substances is a narcotic and for that purpose it has to take all precautions and make the case fool proof.

11. In instant case, admittedly as per contents of F.I.R and evidence of the prosecution 1300 grams of Charas in shape of three pieces were allegedly recovered from possession of appellant, however out of 1300 grams (three pieces) only one piece weighing 500 grams was sent for analysis and report in respect of one piece i.e. 500 grams is in positive, whereas no any sample was taken out from rest two pieces. As such, per settled law the appellant can be saddled for the recovery of charas to the extent of 500 grams which were referred to the laboratory for examination and the chemical examiner’s report in respect of said sample of 500 grams has been exhibited on record, which is in positive. Anyhow, the prosecution evidence is concrete so far the recovery of charas relates, but the fact remains that the prosecution case is ambiguous as sample from each piece/ slab was not taken. In such a situation and peculiar circumstances, accused can only be held responsible for commission of offence on account of recovery of 500 grams only. Legally speaking the appellant/ accused cannot be held responsible for rest of the recovered charas from which no sample whatsoever was taken out and the same remained un-examined and uncertified. There are numerous authorities on the point that a person can be liable for punishment to the extent of recovered charas duly certified by chemical examiner. In this context reliance can safely be placed upon case of Mohammad Chuttal V. The State reported in PLD 2001 Cr.C Karachi 714, wherein it has been held that when one kilogram charas out of 30-kilograms has been sent for chemical examination, then accused can only be dealt with keeping in view his involvement in respect to one kilogram charas only. In another case of Imtiaz Ali V. The State reported in SBLR 2006 Sindh 1519, it has been held that when 20-kilograms charas is recovered in the shape of patties and plates and only 250 grams was sent for chemical examination and when it was not mentioned whether the sample has been taken from each patti/ plate then the punishment for entire lot cannot be provided.

12. In view of above discussion and the case law referred to above, the impugned judgment requires interference by this Court to the extent that the prosecution on the basis of evidence adduced on the record has proved its case and brought guilt of the accused for the commission of the offence on amount of recovery of only 500 grams contraband charas instead of 1300 grams, and case against him stands proved for an offence which falls under Section 9 (1)(b)(3) of Control of Narcotic Substances (Amendment) Act, 2022, instead sub Section (c) of the Act. However, since the appellant is a young man aged about 34 years and is a first offender, as such keeping in view this fact while taking lenient view we maintain the conviction and modify the sentence inflicted upon appellant to lesser punishment under Section 9 (1)(b)(3) of Control of Narcotic Substances (Amendment) Act, 2022. Accordingly, the conviction and sentence awarded to appellant is hereby reduced, as detailed below:

From

R.I of nine years and fine of Rs.80,000/- and default in payment of fine to suffer further S.I for one year.

R.I for five years and fine of Rs.20,000/- and in case of default in payment of fine he has to S.I for two months more.

13. We are of the considered view that the conviction and sentence awarded by the trial Court modified by this Court would be enough to serve out the ends of justice. With such modification in conviction and sentence including the sentence of fine, this appeal is hereby dismissed.

Judge

Ansari