IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.479 of 2010

                                               Present: Mr. Justice Naimatullah Phulpoto

               Mr. Justice Nazar Akbar

               -------------------------------------------------------

 

Date of Hearing:    28th April, 2015

Appellants:            Muhammad Anwar s/o Atta-ur-Rehman and Safar son of Phurdil through Mr. Abdul Rasheed Nizamani, Advocate

 

Respondent:          The State through Mr. Abrar Ali Khichi, Assistant Prosecutor General Sindh.

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J. --- Appellants Muhammad Anwar son of Atta-ur-Rehman and Safar son of Phurdil were tried by learned Special Judge-I (CNS) Karachi in Special Case No.264 of 2005 under Section 9(c) of the Control of Narcotic Substances Act, 1997. Learned Special Judge convicted the appellants by judgment dated 27th September, 2010, and sentenced appellants Muhammad Anwar and Safar to imprisonment for life each and to pay fine of Rs.1,000,000/- (Rupees One Million) each and in default further to undergo simple imprisonment for two years each. Benefit of section 382-B Cr.PC was extended to the accused. Case against accused Ramzan and Obaidullah was kept on dormant file.

 

2.       Brief facts of the prosecution case are that on 17.08.2005 complainant received spy information that a truck was coming from Balochistan to Karachi in which there was huge quantity of charas.  Complainant party at 02:00 p.m. proceeded from Excise Police Station and on 19.08.2005 at 0645 hours in the morning saw a Truck No.TKG-041 coming from Hab Chowki towards Karachi. It is alleged that said truck was signaled to stop but its speed was accelerated. Truck was followed by the police party and it was stopped near Murshid Hospital. There were two persons sitting in the Truck. On inquiry, one disclosed his name as Muhammad Anwar, who was driver of the Truck and another disclosed his name as Safar, who was cleaner of the Truck. Truck was taken into custody by the police and such mashirnama was prepared. The search of the Truck was conducted at Excise office. From the diesel tank of the truck, bolts were opened and from the secret cavity of diesel tank 200 packets, containing rods of charas, were secured. Each packet was weighed and weight of each packet of charas was one kilogram, total weight was 200 Kilograms, out of one packet one rod, weighing 12 grams was taken as sample and it was sealed for sending to the Chemical Examiner for analysis and the remaining packets were sealed for put in polythene bags. The personal search of both the accused was conducted in presence of the mashirs. From possession of accused Anwar Khan cash of Rs.1200/- so also driving license in his name were recovered. From personal search of accused Safar cash of Rs.150/- was recovered. On search of truck, original registration book in the name of Obaidullah son of Haji Muhammad Anwar was recovered. Mashirnama of arrest and recovery was prepared in presence of mashirs. Thereafter, F.I.R. No.08/2005 was lodged on behalf of the State on 19.08.2005 under section 9(c) of the Control of Narcotic Substances Act, 1997.

 

3.       During investigation, it came on surface that truck was taken on installments by Muhammad Ramzan from Obaidullah and he did not get the said Truck registered in his name. 12 grams of charas was sent to the Chemical Examiner for analysis, positive report was received. After usual investigation challan was submitted against the accused under the above referred sections.

 

4.       Charge against both the appellants was framed under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Ex.5. Appellants did not plead guilty and claimed to be tried.

 

5.       In order to prove its case, the prosecution examined the following witnesses:

(1)      PW-1 Sajid Hussain, Excise Constable, PIO at Ex.8

(2)      PW-2 Muhammad Ejaz Baloch, AETO, District South at Ex-9

 

          Thereafter, prosecution side was closed vide statement dated 19th April, 2010 at Ex-10.

 

6.       Statements of appellants under Section 342 Cr.P.C were recorded at Ex.11 and Ex.12. Appellants denied allegations and claimed innocence and denied the recovery of charas. Both appellants that they have no concern with the Truck, PWs have deposed against them due to enmity. Appellants declined to examine themselves on oath and also did not lead evidence in defence.     

 

7.       Learned Special Judge-I (CNS) Karachi, after assessment of evidence, convicted both the appellants as stated above.

 

8.       Mr. Abdul Rasheed Nizamani, learned counsel for the appellants does not press the appeal on merits. He has submitted that out of 200 kilograms charas, only 12 grams of charas were sent to the Chemical Examiner from one packet and sample was not taken from each packet. The appellants are liable for sentence for 12 grams. In support of his contentions he relied upon the case of Mst. NASREEN BIBI versus The STATE (2014 SCMR 1603).

 

9.       Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh argued that the prosecution has proved its case against the appellant, however, he also concedes to the legal position enunciated in the aforesaid case law.

 

10.     In the case of Mst. Nasreen Bibi versus the State (supra) the Honourable Supreme Court has observed as under:

“We have observed that according to the prosecution the appellant had been apprehended while in possession of four bags containing poast and the total weight of the narcotic substance contained in those four bags was forty kilograms. The F.I.R. as well as the Memorandum of Recovery show that a consolidated sample of five hundred grams had been separated from the four bags taken into possession in this case and no separate sample had been secured and tested vis-a-vis the substance contained in each bag. The consolidated sample of five hundred grams of the recovered substance was then tested positively by the Chemical Examiner. It has already been held by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) that a sample has to be secured from every bag or packet of narcotic substance recovered in a case and each such sample is to be separately tested by a Chemical Examiner. In the case in hand only one consolidated sample of five hundred grams had been secured and tested and, thus, only one bag out of the four bags recovered could be counted towards the appellant's guilt. If four bags contained forty kilograms of poast then one bag could be said to have contained ten kilograms of poast and it is only that quantity which could be considered against the appellant for the purposes of her conviction and sentence. In this view of the matter this appeal is dismissed to the extent of the appellant's conviction for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 but the same is partly allowed to the extent of the appellant's sentence of imprisonment which is reduced to that already undergone by her. The sentence of fine passed against the appellant is maintained but it is ordered that in default of payment of fine she shall undergo simple imprisonment for one year. The benefit under section 382-B, Cr.P.C. has already been extended to the appellant. This appeal is disposed of in these terms.

 

11.     From the evidence it appears that only 12 grams charas were taken as sample from one packet, which contained one kilogram charas, separate samples were not taken from each packet and this position has been admitted by the learned A.P.G. It is also evident from the evidence and report of the Chemical Examiner at Ex.9-C. We have no hesitation to hold that at the most quantity of one packet which contained one kilogram charas could be counted towards appellants’ guilt. It is only that quantity which could be considered against appellants for the purpose of their conviction and sentence. Jail roll has also been called, which shows that the appellant Muhammad Anwar was admitted to the Central Prison, Karachi on 29.08.2005 and he has served sentence, excluding remissions upto 28.04.2015, 9 years, 7 months and 29 days, sentence served including remissions, 20 years, 9 months and 8 days. Jail roll of Appellant Safar shows that he was admitted to the Central Prison, Karachi on 29.08.2005, he has served sentence excluding remissions 9 years, 7 days and 29 days, including remissions sentence served 22 years 2 months and 20 days. According to sentencing policy as reported in the case of GHULAM MURTAZA and another versus THE STATE (PLD 2009 Lahore 362) sentence of one kilogram charas is rigorous imprisonment for 4 years 6 months and fine of Rs.20,000/- or in default SI for 5 months. Appellants have already served the period more than which has been prescribed in the sentencing policy as referred in the above case. While relying upon the aforesaid authority of the Honourable Supreme Court of Pakistan we dismiss appeal to the extent of conviction passed by learned Special Judge against the appellants, however, partly allow appeal to the extent of imprisonment, reducing the sentence to 4 years, 6 months and fine of Rs.20,000/- or in default SI for 5 months. Sentence is already undergone by the appellants. The sentence of fine of Rs.20,000/- or in default S.I. for six months is maintained.

 

          Appeal is disposed of in the above terms.

               JUDGE

JUDGE

Gulsher/PA