IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Cr. J.A No: D-60/2009

Present:-

Mr. Muhammad Ather Saeed &

Mr. Ghulam Sarwar Korai, J.J.

Date of hearing: 03-06-2010

Fazal Ghani: Appellant.

Versus

The State: Respondent.

For the Appellant: Mr. Nisar Ahmed Bhanbhro, Advocate.

For the State: Mr. Shyam Lal,

Assistant Prosecutor General.

J U D G M E N T

Muhammad Ather Saeed, J--- This Criminal Jail Appeal has been filed against the Judgment of the Special Judge, CNS, Ghotki, dated 27-08-2005 in Special Case No. 03/2001 relating to Crime No. 02/2001 registered with P.S: Excise, Ubauro Circle for offence under Section 9 (c), Control of Narcotic Substance Act, 1997, wherein the learned Trial Court had convicted the Appellant for offence under Section 9 (c), Control of Narcotic Substance Act, 1997 and sentenced him to suffer imprisonment for life and to pay fine of Rs. 1,00,000/- and in default of payment of fine, to undergo R.I for one year more. He was also extended the benefit of Section 382-B, Cr.P.C.

2. The facts of the case have already been narrated by the learned Special Judge in the Impugned Judgment, and therefore, need not repeat the same.

3. On the last date, Mr. Nisar Ahmed Bhanbhro, the learned Counsel, at the request of the Court, had graciously agreed to represent the Appellant pro bono.

4. We have heard Mr. Nisar Ahmed Bhanbhro, the learned Counsel for the Appellant and Mr. Shyam Lal, the learned APG.

5. Mr. Shyam Lal, the learned APG, at the very outset of the case, had submitted that the Appeal is time barred as the Impugned Judgment was passed on 27-08-2005 and the Jail Appeal has been filed on 30-05-2009. He relied on an unreported Judgment of this Court, dated 29-07-2009 in Criminal Jail Appeal No. D-12/2007, where for filing of Appeal three years after the passing of the Impugned Judgment, this Court had dismissed the Appeal on the point of limitation and had not heard the case on merits.

6. We are, however, of the opinion that this is a case in which capital punishment, i.e. life imprisonment has been inflicted on the Appellant and this Court, in the interest of justice, should hear the case on merits rather than dismiss it on technicalities and limitation. We, therefore, in the interest of justice reject the preliminary objection raised by the learned APG.

7. Mr. Nisar Ahmed Bhanbhro, the learned Counsel for the Appellant, initially drew our attention to the Chemical Examiner’s Report, dated 29-03-2001 and pointed out that although the alleged examination was carried on by one Chemical Examiner Dr. Shahabuddin Shaikh but the report which has been filed has not been signed by the said Dr. Shahabuddin Shaikh but was signed by one Dr. Imam Bux Abbasi with the note that this report was issued by Ex-Chemical Examiner Dr. Shahabuddin Shaikh who has since then been transferred, and therefore, his successor had issued duplicate Chemical Examination Report. The learned Counsel submits that the Chemical Examiner’s Report is the basic document which is the foundation of any conviction under the Control of Narcotic Substance Act, 1997 and in the absence of such a report, no conviction can be sustained. On this point, he relied on a Judgment of this Court in the case of Gul versus the State, reported in PLD 1977 Karachi 1019, wherein a D.B of this Court had held that a report not bearing signature of Chemical Examiner but a copy attested by his successor cannot be admissible in evidence. On this point, he further relied on the two Judgments of learned Federal Shariat Court, i.e. in the case of Shafiullah and another versus the State (PLJ 1994 FSC 84) and in the case of Mohammad Yameen versus the State (PLJ 1987 FSC 28), in which the same proposal of law has been laid down by the learned Federal Shariat Court. He, therefore, submitted that on this point alone, the Impugned Judgment is liable to be set aside and the Appellant be acquitted.

8. Mr. Shyam Lal, the learned APG, had initially stated that the report had been signed by the Chemical Examiner who conducted the test but could not point out to any reference or evidence in support of his above contention. He, therefore, sought time to reply to this argument of the learned Counsel.

9. At this stage, the learned Counsel for the Appellant referred to the FIR and pointed out that instead of taking sample from each rod, only three rods of 1 kg. each out of 120 rods, were sent for Chemical Examination. He, therefore, submitted that in accordance with the Judgment of the Honourable Supreme Court in the Case of Mohammad Hashim versus the State (PLD 2004 SC 856) the maximum liability with which the Appellant can be saddled is of possession of 3 kg. of Charas. He, therefore, submitted that he will be satisfied if this Appeal is disposed of and the sentence prescribed by the Lahore High Court in the Case of Ghulam Murtaza versus the State (PLD 2009 Lahore 364) for possessing 3 kg. of Charas which is five years and six months and fine of Rs. 25,000/- and in default, S.I for five months and fifteen days more is imposed. He submitted that the Appellant has been in custody since 21-02-2001 that is the day the incident allegedly occurred and has already spent more than nine years and three months in sustentative custody.

10. This proposal is not seriously opposed by the learned APG. Since the proposal is reasonable and is in accordance with the Judgment of the Honourable Supreme Court in the Case of Mohammad Hashim, quoted supra and the sentence is in accordance with the Judgment of the Lahore High Court in the Case of Ghulam Murtaza, quoted supra, we, therefore, accept this prayer and dispose of this Appeal as not pressed and modify the sentence from life imprisonment to five years and six months R.I and fine from Rs. 1,00,000/- to Rs. 25,000/- and in lieu of non-payment of fine, S.I for six months and fifteen days more. Since the Appellant has already served the sentence which is much more than the sentence which has been imposed by us, therefore, the Jail Authorities are directed to release him immediately if not wanted in any case.

11. We would, at this stage, like to record our appreciation for Mr. Nisar Ahmed Bhanbhro who had graciously accepted out request for representing the Appellant pro bono and in a matter of weeks has prepared this Case in a very competent manner and has rendered invaluable assistance to this Court.

12. The Appeal is disposed of in the above manner.

Judge

Judge

Rashid