Present
Mr. Justice Faisal Arab
Mr. Justice Aqeel Ahmed Abbasi.
Abdul Hayee s/o Muhammad Yousuf……………………………Appellant
Versus
The State………………………………… …… ……………… Respondent
Date of hearing : 16.12.2011
Date of judgment : 16 .12.2011
Mr. Moharram G. Baloch, advocate for the appellant
Mr. Shahid Ahmed Shaikh, APG.
Appellant produced in custody.
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Aqeel Ahmed Abbasi, J: The abovenamed appellant has sent this appeal through Superintendent Central Prison, Karachi, against the judgment dated 24.3.2009 passed by the Judge, Special Court-II Control of Narcotics Substances Karachi in Special Case No.315 of 2005, whereby the appellant was convicted under section 6/9/C of CNS Act, 1997 and sentenced to suffer R.I. for life imprisonment and also imposed fine of Rs.45,000/- and in default of payment of fine to suffer R.I. for eight months more. However, benefit as admissible under section 382-B Cr.P.C. was extended to the appellant.
2. Prosecution story in nutshell as per contents of F.I.R No.20 of 2005 registered under section 6/9/C C.N.S Act, 1997 of Police Station Excise (DIO), Karachi by complainant Excise Inspector Harjimal that on 20.10.2005 at 12.30 night the complainant alongwith other excise staff were busy for detecting narcotics at Excise Check Post, Hub River Road, Karachi, during which a Mini Bus/Coaster bearing registration No.LSC-1811 were stopped and a person seated on Seat No.6 found suspected and alighted from the bus. He was searched and found in possession of 8 packets of Charras in the shape of rods tied with his abdomen, vest and thigh, the recovered packets on weighing came to 12 Kgs and from 8 packets each of 10 grams were separated and sealed in white envelops for chemical examination and remaining packets were also sealed in a white plastic bori, such mashirnama was prepared at the spot.
3. Accordingly, the case was registered, investigated and sent up for trial. The appellant pleaded not guilty to charge and the trial commenced.
4. At the trial, prosecution examined the Excise Inspector Harjimal the complainant and I.O. of the case and Excise Constable Arshad Ali. Mashirnama of arrest and recovery of charras and Chemical Examiner’s report were produced in support of prosecution case.
5. The appellant in his statement recorded under section 342 Cr.P.C denied all the allegations and he did not examine himself on oath or lead evidence in defence.
6. On conclusion of the trial, the trial court found the accused/appellant guilty of the charges and convicted him in the terms as stated above.
7. On 08.06.2011 when the matter was fixed in court the appellant requested that some advocate may be appointed to conduct his case. This Court directed the Secretary Law to arrange/appoint an advocate for the appellant in this case. On 29.06.2001 Mr. Moharram G. Baloch, advocate appeared and represented the appellant.
8. Learned counsel for the appellant has contended that the P.Ws have falsely deposed against the appellant whereas nothing incriminating was recovered from the possession of the appellant. Learned counsel argued that there are many contradictions in evidence of P.Ws. Per learned counsel, only one rod from each packet was sent to chemical examination and there is no report regarding the remaining rods whether these were charras or something else. Per learned counsel, it is settled law that a single circumstance is sufficient to create doubt in the prosecution case. In support of contention, learned counsel has placed reliance in the case of Habibullah v. The State 2007 M.L.D 825, Barnabas v. The State N.L.R 2007 Criminal 70 and Muhammad Hashim v. The State PLD 2004 SC 856.
9. Conversely, learned A.P.G supported the conviction and submitted that the prosecution has been able to prove its case without any shadow of doubt. According to him, no material contraction is pointed out and P.Ws have supported the prosecution case and that chemical report is in positive, which shows that the recovered contraband is charras.
10. From perusal of record, it appears that P.W-1 has stated in his cross-examination that recovered narcotics were 8 in number and total weight of the so recovered package was found to be 12 Kgs in the shape of rods. One rod was separated from each packet in order to send the same for chemical analysis. However, each rod was not separately weighed nor samples from each rod were sent for chemical examination. Similar is the statement of P.W-2.
11. In the case of Muhammad Hashim v. The State PLD 2004 SC 856, the Hon’ble Supreme Court under somewhat similar circumstances has held that nothing is available on record to show whether sample for examination by Chemical Examiner was taken out from each rod to ascertain that 288 rods were of Charas or some other commodity, having resemblance with the colour of Charas like Oil Cake (Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any component of section 9 is proved. Therefore, for such reason, Act 1997 has to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, etc. are to be followed strictly in the interest of justice, otherwise in such-like cases it would be impossible to hold that total commodity recovered from his possession was Charas.
12. Keeping in view the dicta laid down by the Hon’ble Supreme Court hereinabove, we are of the opinion that under the facts and circumstances of this case the conviction of the appellant for the alleged quantity of 12 K.gs of charras has become doubtful hence cannot be sustained. The appellant can be convicted for the rods from which samples were drawn and sent for chemical examination.
13. In view of the above, while maintaining the conviction, we reduce the sentence from section 9(c) to 9(a) of Control of Narcotic Substances Act (XXV of 1997). With the above modification this appeal was disposed off vide our short order dated 16.12.2011 and these are the reasons of such short order.
JUDGE
JUDGE