Cr.Appeal No.D- 61 of 2011.
Present.
Mr.Justice Ahmed Ali
Shaikh.
Mr.Justice Salahuddin Panhwar.
Appellant Ashiq
Ali through Mr.Nisar Ahmed Bhambhro
advocate.
Respondent The
State through Mr.Sardar Ali Shah APG.
J
U D G M E N T.
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SALAHUDDIN PANHWAR,J- By this criminal appeal, the appellant has
assailed the Judgment dated 03.6.2011 passed by the Special Judge (CNS), Khairpur in Special Case No.07/2010 (Re-The State v Ashiq Ali) arising out of Crime No.01/2010 of Excise Police
Town, Khairpur, registered for offence under Section
9-C Control of Narcotic Substance Act, 1997 whereby convicting the appellant
under Section 9(c) CNS Act, 1997 and sentenced him to suffer R.I for ten years
and to pay a fine of Rs.50,000/- and in case of default in payment of fine, the
appellant shall further undergo S.I for four months. The benefit of Section
382-B, Cr.P.C was also extended in favour of the appellant.
2. The
relevant facts leading to this appeal are that on 11.02.2010 Excise Inspector
Mohammad Ali Soomro lodged FIR alleging therein that
on the day of report he and Excise Inspector Liaquat
Ali Dogar alongwith their
subordinate staff namely EC Shahnawaz Chandio, EC Mohammad Rashid Soomro,
ED Mushtaque Hussain Wassan, EC Riaz Hussain Shaikh, EC Mukhtiar Ahmed Bhutto on spy information proceeded towards
the place of wardat near Patrol Pump of Javed Shah situated at main road Khairpur,
where they saw that one passenger Wagon bearing registration No:JF-3867 was
coming from Sukkur and going to Kot Bunglo, they got stopped the said Wagon. According to spy
information four persons were sitting on seat No.3, they alighted one of them,
they asked passengers, cleaner and wagon driver to act as mashir,
but they refused, hence EC Shahnawaz Chandio and EC Mohammad Rashid Soomro
were associated as mashirs and then introduced the
said person from Excise laws. On enquiry the said person disclosed his name as Ashiq Ali son of Mohammad Sultan by caste Jatoi resident of village Noor Muhammad Khan Jatoi, District Khairpur. During
his personal search one white color plastic shopper containing three slabs of charas were found wrapped/tied with his abdomen. During
further personal search, photocopy of NIC and Rs.200/- were secured from right
side pocket of his shirt. The recovered charas was
weighed at the spot, which became three kilograms, out of which 300 grams charas was separated and sealed separately in a black color
shopper as sample for chemical examination, while remaining charas
was also sealed separately in while color shopper bag, such mashirnama of
arrest and recovery was prepared at the spot in presence of above said mashirs, then accused and case property were brought at
Excise PS Khairpur, where complainant registered the
FIR against the accused on behalf of the State. After completion of
investigation police submitted the challan before the
Court of law.
3. A
charge against the appellant was framed as Ex.02 to which he pleaded not guilty
and claimed his trial.
4. It
further reveals that during the trial prosecution examined PW-1 mashir EC Shahnawaz at Ex.4, who
produced mashirnama of arrest and recovery at Ex.4/A, PW-2 complainant Excise Inspector Mohammad
Ali Soomro at Ex.5, who produced departure and
arrival entries at Ex.5/A, FIR at Ex.5/B, chemical report at Ex.5/C, thereafter
the side of prosecution was closed vide Ex.6.
5. It
further reveals that the statement of appellant was recorded under Section 342,
Cr.P.C, wherein he has denied the allegations of the prosecution
and claimed his innocence.
However, neither he examined himself on oath nor examined any defence witness.
6. The
learned counsel for the appellant has inter-alia contended that the impugned
Judgment is not maintainable under the law as the material contradiction in
evidence of witnesses is not appreciated while convicting the appelant the appellant was arrested from a Wagon but none
from the passengers or driver or clear of Wagon was made witness in the instant
case; the punishment awarded to the appellant is harsh and also against the
authoritative proposition of law; the
place of incident is a populated area inspite of that
the police have not made any efforts to join an independent person to act as
witness or mashir. He has relied upon the case of Abdul
Jana v The State (2010 YLR 2283), Rajab Ali v The State (2011 YLR 563), Nazeer Ahmed v The State (PLD 2009 Kar.191), Taj Wali and 6 others v State
(PLD 2005 Kar.128) and Ghulam Murtaza
and another v State (PLD 2009
7. Conversely,
the learned APG appearing for the State has argued that during the cross
examination no material contradiction is surfaced; 3 KGs Charas
was recovered from the appellant, out of three slabs, the representative
portion was taken for chemical examination and such report confirmed the fact;
police officials are good witnesses, moreover no suggestion has been put during
the cross examination regarding any animosity with the police officials,
therefore conviction awarded by the learned trial Court is legal and in
accordance with the law.
8. Heard
the learned counsel for the parties and perused the material available on
record. We have also examined the case law relied upon by the learned counsel
for the appellant. In the case of Abdul Jana (supra), it is held that mashir and all prosecution witnesses had made improvements
in their statements recorded by the Court as against the FIR and those recorded
under Section 161, CR.P.C on material aspect of the case. Such improvements and
contradictions could not be taken lightly and evidence of said mashirs and witnesses would require strong and independent
corroboration. In the case of Nazeer Ahmed (supra),
it is held that officer who is himself complainant in the case can not be
expected to collect and procure evidence which goes against his case. Such
Investigating Officer cannot properly perform duties of an independent and fair
Investigating Officer. In case of Rajab Ali (supra), it is held that
Investigating Officer never produced in the Court the Charas
that was not used in analysis and was returned to him by the Chemical Examainer and non-production of unconsumed samples before
the trial Court for which no plausible explanation has been given either in the
judgment impugned or by the Investigating Officer. We are of the considered
view that the prosecution has failed to prove the case against the appellant
beyond any reasonable doubt. In case of Abdul Jana (supra) it is held that
non-association of public witness with the recovery inspite
of prior information is fatal to the prosecution case.
9.We have carefully considered the authoritative
proposition of the law in the above cases. Now, we revert
the same to this case to examine whether this case falls in same categories or
is different one.
10.Admittedly the
prosecution has examined two witnesses Shahnawaz and
Muhammad Ali.
11.PW Shahnawaz
has deposed that on spy information they stopped a white color Wagon and
arrested a suspected person, found 3 K.Gs Charas from
his possession, which was tied with is abdomen. 300 Grams from all of the rods
were separated and sent for chemical examination. Another PW Muhammad Ali who has also given the same version. It is
pertinent to mention here that during the cross examination, defence counsel failed to bring on record any defect
regarding the recovery of Charas; separation of
samples for chemical examination, and any variation in weight of samples sent
to the chemical examiner.
12.We have also noticed that samples were
sent within time for chemical examination and chemical examiner’s report is
positive. It is also worth to mention here that there is nothing on record
about any suggestion regarding an enmity of prosecution witnesses with the
appellant.
13.As discussed above, it is manifest that
prosecution has succeeded to prove the onus by trustworthy evidence and the case
law in the case of Taj Wali
(supra) is not applicable to this case as in the instant case there is no
improvement in the evidence of prosecution witnesses. The case of Rajab Ali is
also not applicable to this case as in the case of Ameer Zeb
v The State (PLD 2012 SC 380), it is held that representative of property
examined by the chemical examiner is found positive then it will be
sufficiently hold that whole property is same. The case of Abdul Jana (supra)
relied upon by the learned counsel for the appellant is also not helpful to the
case of appellant as on the point of non-association of public witness there
are different views in various cases and in criminal cases every case is to be
decided on its own merits and also there is no cavil that in present
circumstances of the country provided persons are not willing to become
witness. The case of Nazeer Ahmed (supra) is also not applicable to this case as nothing
has been brought on record by the defence against the
Investigating Officer of the present case regarding any animosity or ulterior
motives of false implication and it is also a settled proposition of law that
the police officials are the competent witnesses like any other independent
witness and their testimony can not be discarded merely on the ground that they
are the police personnel, as laid down in the case of Nazeer
Ahmed v The State (2004 SCMR 1361), in which it is held that
__________________________and in the case of Riaz
Ahmed v State (2004 SCMR 988), it is held_________________________.
14.Regarding to the quantum of the sentence
learned counsel has contended that harsh punishment has been awarded to the
appellant. On these assertions we are in agreement with the learned counsel as
the appellant was convicted for ten years in case of 3 KGs Charas
recovered from him. The same is against the authoritative proposition of law
settled by Full Bench of
With
the above modification in the sentence, the appeal is dismissed.
JUDGE.
JUDGE.
AKBER.