HIGH COURT OF SINDH
BENCH AT SUKKUR.
Cr.Jail
Appeal No.D-62 of 2008.
Present.
Messer. Ghulam
Sarwar Korai &
Munib Akhtar,
JJ.
Date of
Hearing 23.12.2009.
Appellants Mubarak and another through: Mr. Sardar Khan
Lashari,
advocate.
Respondent The State through:
Mr.Fazal Muhammad
Khokhar SPP.
JUDGMENT.
GHULAM
SARWAR KORAI, J.- This Jail Appeal is
directed against the judgment dated 13.10.2008 passed by the Court of learned
Special Judge for CNS, Khairpur in Special Case No.13 of 2007 whereby the
appellants Mubarak and Sanwal
were tried for an offence punishable under Section 9(c) Control of Narcotic
Substances Act, 1997 (“CNS Act”). Appellant Mubarak
was convicted and sentenced to suffer imprisonment for life under Section 9(c)
CNS Act and fine of Rs.50,000/- in default thereof to
suffer S.I for two years more, while appellant Sanwal
was convicted and sentenced to suffer R.I for ten years and to pay fine of
Rs.25,000/- in default thereof to undergo S.I for further period of one year.
Both the appellants were extended benefit of Section 382-B, Cr.P.C.
The facts of the
prosecution case are that on 25.4.2006 at
The charge against both
the appellants was framed to which they pleaded not guilty and claimed to be
tried and their pleas were recorded vide Ex.1, 2, 3 and 4 respectively.
In order to prove its
case, the prosecution examined Shafiq Rehman complainant/I.O as Ex.5. He produced Roznamcha Entry, Ex.5.A, mashirnama
of the place of incident, arrest and recovery as Ex.5-B, FIR as Ex.5-C, receipt
of the Chemical Examiner as Ex.5-D and Chemical Examiner’s report as Ex.5-E. PW Rehmat Ali was examined as Ex.6. Thereafter the prosecution
closed its side by learned DPP/SPP vide Ex.7.
The statements of the
appellants under Section 342, Cr.P.C were recorded
vide Ex.8 and 9 respectively. Appellant Sanwal was
also examined on oath vide Ex.10. He produced affidavit of one Miss Nazeeran as Ex.10.A, Nikahnama as
Ex.10-B, thereafter the side of defence was closed by
the learned Advocate for the accused as Ex.11.
The learned trial Court
framed the points requiring determination as under:-
POINT
NO.1. Whether accused Mubarak and Sanwal on 25.4.2006
at about 1.00 p.m arrested at the bridge of Rohri canal situated on Hallani- Mehrabpur link road district Naushahro
Feroze by the Excise party headed by the complainant
and recovered 20 kilograms charas (lying in blue bag)
from the possession of accused Mubarak and 10 kilograms charas
(lying in green colour bag) from the possession of
accused Sanwal, as alleged or otherwise?
POINT NO.2. What
offence(s), if any, is/are committed by the
accused?
Point No.1 was decided
in affirmative and as regards Point No.2, the
appellants were convicted and sentenced under the impugned judgment as stated
above.
Heard the arguments of Mr.Sardar Khan Lashari, learned
counsel for the appellants and Mr.Fazal Muhammad Khokhar, learned SPP for the State. The latter opposed the
appeal and prayed that the judgement of the trial
Court may be maintained.
The learned counsel for
the appellants contended that the complainant has been examined in his due
capacity as the complainant and I.O., as such he was
naturally interested with his case. He also contended that the complainant was
accompanied by ten subordinate police personnel but the prosecution examined only
Rehmat Ali as witness, who is also subordinate of the
complainant/I.O. He further contended that a joint mashsirnama
of arrest and recovery of two accused/appellants was prepared and one FIR was
registered, and both the accused were tried jointly. According to the learned
counsel, the cases of the two accused ought to have been proceeded with
separately by the learned trial Court. He also further contended that the
appellants at the most were liable to be convicted only for the quantity which
was sent to the chemical examiner and for which the positive report had been
submitted.
On an examination of the
record and after considering the submissions of the learned counsel, we are inclined
to accept the points raised by the learned counsel for the appellants. The
first and most crucial point is as regards what was sent for chemical
examination. As noted above, one slab of the charas
like substance and one rod was sent by the excise police for this purpose. Now all
the slabs, as per the prosecution case, were recovered from the blue coloured bag (recovered from appellant Mubarak).
Thus, (subject to what is stated below), it could be said that the substance
that was recovered from Mubarak was chemically
tested. However, the rod like material was found both in Mubarak’s
bag and in Sanwal’s bag. The prosecution evidence
does not however indicate whether the rod that was sent for chemical
examination was taken from Mubarak’s bag or from Sanwal’s bag. It cannot therefore be said whether the
material recovered from Sanwal was at all chemically
tested or not. This point was also taken by counsel for the appellants in the
cross examination of Shafiq Rehman,
and when the appropriate suggestion was made to him, he deposed as under:-
“It
is incorrect to suggest that sample from the slab type chars alleged to be
recovered from accused Mubarak was not sent to the
chemical examiner for analysis purpose. It is incorrect to suggest that rod
type chars alleged to be recovered from accused Sanwal
not sent to the chemical examiner for analysis purpose.”
He further deposed as under:-
“We
did not stop our mobile at any place, then came to Halani
thereafter proceeded towards Mehrabpur.”
While PW-2 Rehmat
Ali in his cross examination deposed as under:-
“We
stopped vehicle at so many places.”
We also note that according to the
report of the chemical examiner, two sealed packets were received by him. Mubarak’s name was on packet No. 1, while Sanwal’s name was on packet No. 2. According to the chemical
examiner’s report, the packet marked as packet No.1 was found to contain black
brown rods, while packet No. 2 was found to contain one black brown slab. But
according to the prosecution’s own case, no slabs were found in the green coloured bag recovered from Sanwal.
Thus, not only is it not established whether any substance recovered from Sanwal was at all sent for chemical examination, even the
material that was sent (as per the report) contradicts the testimony of the
excise officers. There is thus a material contradiction between the contents of
the FIR and the report of chemical examiner. There is therefore clearly
reasonable doubt as to whether the material allegedly recovered from Sanwal was at all chemically analyzed in order to determine
its composition and thus establish whether it came within the scope of the CNS
Act. We are also shocked to see that the chemical examiner sent his report to
Excise Inspector, EPS, Kandiaro vide dispatch
No.676/2006 dated 09.5.2006 while this report was signed by Dr.Tariq
Abbass Dareshani, Chemical
Examiner, Government of Sindh Chemical Laboratory Sukkur at Rohri
on 25.5.2006, after 16 days from the date of dispatch of the same. This would
indicate that when the report was dispatched, it was unsigned, and was therefore
either signed in the Office of Excise Department or in the Court.
For the foregoing
reasons, we are of the considered view that the prosecution has not been able
to establish its case against appellant Sanwal beyond
reasonable doubt. Therefore we allow the appeal of appellant Sanwal, and set aside conviction and sentence awarded to
him under the impugned judgment and acquit him. As regards appellant Mubarak is concerned, in view of the judgement
delivered by this Court in the case of Muhammad
Nawaz v The
State NLR 2008 SD 696, we hold that for sentencing purposes, he is only
responsible for the quantity which was separated for sample for chemical
examination, and the report of which was positive. That amount was only 1 k.g. of charas,
for which the maximum punishment under section 9(b) of the CNS Act is 7 years.
Therefore, while dismissing the appeal of appellant Mubarak,
we reduce his sentence from life imprisonment to seven years and also reduce
fine imposed upon him from Rs. 50,000/- to
Rs.15,000/-; in case of default thereof, he shall further undergo R.I for three
months more.
Above are the reasons of
our short order dated 23.12.2009.
JUDGE
JUDGE