N THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No. D- 69 of 2013.

Present:

Mr. Justice Aqeel Ahmed Abbasi.

Mr. Justice Aftab Ahmed Gorar.

Shahnawaz alias Shahid Ali. …………...Appellant.

Versus

The State. ……….….Respondent.

Mr. Ahmed Bux Abro, Advocate for the appellant.

Mr. Imtiaz Ali Jalbani, A.P.G.

Date of hearing: 29.01.2014.

Date of judgment: 29.01.2014.

J U D G M E N T

Aftab Ahmed Gorar, J-. Appellant named above has preferred this appeal against judgment dated 10.10.2013, passed by learned 1^st Additional Sessions Judge/ Special Judge (Narcotics), Dadu, whereby he was convicted under section 9 (c) of Control of Narcotic Substances Act, 1997, and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.25000/-; in case of non payment of fine, he shall suffer S.I for three months more. However, benefit of section 382-B Cr.P.C was extended to appellant.

2. Succinctly facts of prosecution case are that on 27.09.2011, complainant Ameer Ali Zardari registered case on behalf of the State with Excise Circle Mehar, alleging therein that on the fateful day he alongwith his subordinate staff left Excise office vide roznamcha entry for patrolling on a private car to restrain contraband; when they reached near Degree college Mehar Khairpur Nathan Shah road Mehar they saw a suspect was standing, who on seeing them tried to slip away but they arrested him. On inquiry he disclosed his name to be Shahnawaz son of Muhammad Arab Soomro. Two of the constables were nominated as mashirs and personal search of the captive was taken during which a plastic shopper containing charas from his fold and one currency note of Rs.100/- were recovered. The charas was weighed, which become 1010 grams, out of which ten grams were separately sealed for sending to chemical analyzer. Such memo of arrest and recovery was prepared on spot. The accused was then brought at Excise Circle Mehar, where complainant lodged report to the above effect.

3. Formal charge against the appellant was framed by the trial Court, in which he denied the allegations of prosecution and claimed his trial.

4. In order to prove its case, the prosecution examined in all two witnesses i.e. complainant Excise Inspector Ameer Ali at Ex.5, who produced attested photocopy of departure entry No.1 at Ex.5-A, attested photocopy of mashirnama of arrest and recovery at Ex.5-B, F.I.R at Ex.5-C and report of chemical examiner at Ex.5-D. PW-2 Mashir Excise Constable Syed Muddassar Shah at Ex.6; and then learned Special Prosecutor closed prosecution side vide statement at Ex.7.

5. Statement of the appellant under Section 342 Cr.P.C was recorded, in which he denied the material put forward to him in shape of questions. He however, neither examined himself on oath nor produced any defence evidence.

6. Learned counsel for the appellant argued that entire recovered charas was not sent to the Chemical examiner and only 10 grams were sent to the chemical examiner, therefore, the appellant would be held responsible to the extent of said 10 grams only. He further contended that as per the F.I.R as well as mashirnama double Patti of charas was recovered from the appellant and 10 grams from single piece of one Patti was taken out and sent for chemical analysis. In support of his arguments he has relied upon PLD 2009 Lahore 362, PLD 2012 S.C 380 and 2013 MLD 1512.

7. On the other hand learned A.P.G. supported the impugned judgment and contended that prosecution witnesses have deposed in line with each other and there are minor contradictions in between their evidence, which cannot be considered. He submitted that the appellant did not challenge/dispute the chemical examiner’s report which was in positive. He further submitted that prosecution succeeded to prove the charge against appellant; therefore, the impugned judgment requires no interference by this Court.

8. The learned A.P.G also submits that there are two Patties in single joint shape, and from one Patti the sample seemed to be taken for chemical analysis, and that each Patti seems to be equal in weight i.e. 500 grams each. Learned A.P.G. further submits that the appeal may be dismissed and the appellant may be awarded punishment as per quantum provided by the full bench of Lahore High Court, Lahore, in case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362).

9. The only question which arises in the present appeal is whether the appellant has been convicted according to quantity of narcotic substance recovered from his possession. In this regard, an elaborate judgment has been passed by full bench of Lahore High Court, Lahore, in the case of Ghulam Murtaza and another (supra), wherein the issue of sentence from diverse angles including legal, social and economic perspectives was determined and the normal and standard sentences for different quantities of various contraband narcotic substances recovered in connection with the control of Narcotic Substances Act, 1997, were approved and prescribed. In this regard a detailed chart containing the quantity of narcotics and corresponding sentence has been provided in the said judgment. This judgment has been approved by the Hon’ble Supreme Court of Pakistan in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380). According to the chart regarding the sentence for quantity of charas exceeding 300 grams upto 600 grams has been provided as R.I for one year and six months and fine of Rs.11000/- or in default S.I for four months. As per case of prosecution the recovered Charas were two Patties in single joint shape, and from only one Patti one piece of 10 grams was taken out and sent for chemical examination. Learned A.P.G also conceded that there are two Patties in single joint shape, and from only one Patti the sample seemed to be taken for chemical analysis, and that each Patti seems to be equal in weight, which would be 500 grams each, therefore, under these circumstances keeping in view the law laid down in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380), and by applying the sentencing policy of the Lahore High Court, Lahore laid down in the case of Ghulam Murtaza (supra, we while maintaining the conviction of the appellant, reduce his sentence from seven years to one year, six months and fine from Rs.25000/- to Rs.11000/- and in default of payment of fine to suffer S.I for four months more. The appellant has already been extended benefit of Section 382-B Cr.P.C.

10. The appeal stands dismissed with above modification in the sentence.

Judge