Criminal Appeal No. 144 of 2010
Present:
Mr. Justice Ahmed Ali M. Shaikh
Mr. Justice Syed Muhammad Farooq Shah
J U D G M E N T
Appellant through : Mr. A.Q. Halepota, Advocate
State through : Ms. Akhter Rehana, APG, Sindh
Date of hearing : 26th October, 2015.
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Syed Muhammad Farooq Shah, J: Appellant Zakarullah was charged by Special Judge, CNS, Kashmore @ Kandhkot on 18.03.2010, for possessing 20 mounds (800 kg) of Charas and was tried for offences under Sections 6, 8 and 9 (C), Control of Narcotic Substance Act, 1997 alongwith absconding accused Zaman, Gulsher and Rabbani. On conclusion of prosecution evidence of PW1 Excise Inspector Deedar Ali, who prepared memo of recovery of contraband narcotics and lodged FIR No. 2/2008 and PW-2 Excise Constable Muhammad Ayub who witnessed the recovery were examined and after examination of two prosecution witnesses, the prosecution closed its side. In defence, the appellant examined himself under Section 342 Cr.P.C and under section 340(2) Cr.P.C. on oath; two defence witnesses were also examined by him and thereafter by pronouncing the impugned judgment dated 18.03.2010 handed down by learned Special Judge, CNS, Kashmore @ Kandhkot, the appellant was convicted and sentenced under Section 9(C) Control of Narcotic Substance, 1997, for imprisonment of life and to pay fine of Rs. 1,000,000/- (Rupees One Million only) or in in default in payment thereof to undergo S.I for six months more. However, benefit of Section 382-B Cr.P.C was extended to the accused by holding that the sentence was awarded by taking lenient view due to young age of the accused. Being dissatisfied with the impugned judgment, the appellant has challenged his conviction and sentence by filing the captioned appeal before this Court and has prayed to set-aside the impugned judgment.
2. We have considered the arguments advanced by Mr. A.Q. Halepota, learned Counsel for the appellant and learned Prosecutor appeared for the State and have also carefully scanned record of the case with their able assistance.
3. Prosecution story as narrated in the FIR and in the memo of recovery as well transpire that the appellant was apprehended while driving the oil tanker bearing Registration No. P-2463 at Dakhan Check Post @ Kandhkot and on search, the tank of oil tanker was found empty, however in white bed sheets 800 kg charas in packets, each packet contained one kg charas was found; 40 kg charas was taken from the packets and separately sealed for sending it to the chemical examiner. Deposition of PW1 Excise Inspector Deedar Ali, who made alleged recovery in presence of his two sub-ordinates, stated in his examination-in-chief that he separated and sealed 20 kg of charas in one plastic bag; 20 kg of charas in other plastic bag for sample while remaining charas 760 kg was sealed in 40 bags, each containing 19 kg. He separately sealed bed sheets in 40 plastic bags, which contained 10 bed sheets. On 25.08.2008; after two days of alleged recovery, he dispatched the sample to the Chemical Laboratory Rohri for report through Constable Rafiq Ahmed. In the last of his examination-in-chief, he had stated that the accused in his statement disclosed the names of his companions namely Zaman and Rabbani, those have also been made absconding accused, however, in cross he has stated that passengers of a bus/coach were checked prior to search of oil tank and from 800 packets, each packet of one kg, 5 packets were put in the scale for weight and remaining charas was weighed by his Mushirs. The bags were brought from Kashmore Town through one PC Ghulam Hussain and 40 packets were dispatched by him to the Chemical Examiner by taking one packet from each bag, however from perusal of the report of Chemical Examiner, brought on the record by the prosecution, shows that in two plastic urea bag; 20 plastic ‘Khaki’ Colored ‘Thallies’ containing two plastic brown coloured slabs weighing 20 kg, 5.055 kg, net weight of each slab from the bag was one kg, 200 grams of material from each packet of above Urea bag No. 1 & 2 was consumed in analysis and remaining material was returned with positive report of Charas.
4. The second Prosecution witness is Excise Constable Roshan Ali, who narrated similar facts of the incident and recovery and stated that from 800 kg recovered charas, 20 kg in each bag was separately sealed, total 40 bags were prepared and sealed, which were sent to the Chemical Examiner, two bags, each of 20 kg were separately sealed for sending to the Chemical Examiner, however, in cross he deposed that during the process of weighment, the accused was handcuffed and was made to sit in the Excise Mobile Vehicle; plastic bags were sealed.
5. On the other hand, the appellant has taken defence plea for his false implication by the prosecution witnesses and examined himself on oath and two witnesses in his defence. In his evidence, the appellant has stated that he was one of the passenger of the coach and was made escape goat in involvement of the case though he found the oil tanker ahead of the bus; about DWs he stated in cross that they were known to him and came in the Court at his instance to give evidence. Both defence witnesses supported the accused and stated that they have not produced ticket of the bus neither they sent application of false implication of the accused by the Excise Officials, without showing any ill-will or enmity with the prosecution witnesses.
6. Learned counsel for the appellant contended that the appellant has falsely been involved in this case; that the prosecution witnesses have contradicted all material aspects of the case and their evidence is not confidence inspiring; the impugned judgment is based on misreading and non-reading of evidence and is liable to be set aside.
7. From perusal of record it appears that huge quantity of narcotic has been recovered from the possession of appellant; the contradictions in between the prosecution witnesses pointed out by learned counsel are not so much material as many factors appealing to prudent mind much less judicial mind have strong reasons to believe the trustworthy piece of evidence without any false implication as the defence plea agitated by the appellant side that he has been made scapegoat without any sufficient reason, plausible cause or animosity with the prosecution witness; the explanation offered by the appellant cannot justify the confidence inspiring evidence adduced by the prosecution. For the safe administration of justice we reached at the irresistible conclusion that the trial court has correctly observed that prosecution has been able to prove the case against the appellant beyond reasonable doubt. The citations relied upon by the learned counsel for the appellant are not attracting in the facts and circumstances of the present case as we do not fully persuaded to agree with the reasoning that private persons of the locality did not witness the alleged recovery as well as entries of station diaries of particular date has also not been placed on the record; the truck was found in the exclusive possession of the appellant and 40 Kgs from 800 Kgs were taken and sent for chemical examination which reflects that substance was Charas.
8. In the case of AMEER ZEB V/S THE STATE (PLD 2012 SC 380), 80 slabs had statedly been recovered from appellant’s possession and total weight of the entire quantity was 20 Kilograms then in all likelihood each cake/slab weighed about 250 grams; one sample of 10 grams was sent to the Chemical Examiner for analysis and the Honourable Court observed that appellant was liable to be held responsible for having only one cake/slab of Charas weighing 250 grams in his possession, which offence attracts the provisions of Section 9(b) of the Control of Narcotics Substances Act, 1997. Relevant part of the aforesaid cited judgment is reproduced hereinbelow:-
“It is our considered opinion that a sample taken of a recovered substance must be a representative sample of the entire substance recovered and if no sample is taken from any particular packet/ cake/slab or if different samples taken from the different packet/cakes/slabs are not kept separately for their separate analysis by Chemical Examiner, then sample would not be a representative sample and it would be unsafe to rely on the mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance.” {Placitum ‘C’}
9. In the case of FAREEDULLH V/S THE STATE (2013 SCMR 302), one consolidated sample of 1.2 Kg from 25 KG was dispatched to the Chemical Examiner for analysis and the Apex Court held the recovery of contraband narcotics could have been 1.2. Kg.
10. In the case of SHAUKAT ALI @ BILLA V/S THE STATE (2015 SCMR 308), the accused was found in possession of 20 Kg Charas in 20 bags, each bag contained 20 packets and each packet weighed 1 Kg; one gram narcotic was separated from each packet and 10 sealed parcels of 20 grams were prepared as sample for chemical examination, hence recovery was considered to be 10 kgs; the death sentence awarded to accused by the trial court was converted into already undergone i.e. 14 years in jail.
11. The Apex Court in the case of MST. NASREEN BIBI V/S THE STATE (2014 SCMR 1603) reduced the sentence to already undergone by her from life imprisonment, for possessing 40 Kg narcotics, on the ground that one consolidated sample of 10 Kg of narcotics could be considered against the accused.
12. It is not out of context to say that the evidence led by the prosecution is in line with the case as highlighted above with no material variation; more particularly the prosecution witnesses have corroborated the memo of recovery, FIR and report of Chemical Examiner is in positive. No enmity whatsoever has been alleged against the recovery officials. In the reported case of ISMAEEL V/S THE STATE (2010 SCMR 27) the Hon’ble Supreme Court observed that the statement of Anti-Narcotics Force cannot be discarded due to reason that they belong to Anti-Narcotics Force. Reliance may also conveniently be placed on the reported cases of NASEER AHMAD V/S THE STATE (2004 SCMR 1361) and RIAZ AHMAD V/S THE STATE (2004 SCMR 988).
13. In the case of MUNAWAR HUSSAIN ALIAS BOBI V/S STATE (1993 SCMR 785) Hon’ble Supreme Court of Pakistan held that technicalities of procedural nature or otherwise should be looked in the larger interest of country, if case stands otherwise proved; the approach of the court should be dynamitic and pragmatic, in approaching the true facts of the case.
14. There is no denial from the appellant side that the aforesaid huge quantity of Charas was recovered from the oil tank of truck, therefore, accused being driver of the truck cannot be absolved from his responsibility.
15. It is pertinent to mention here that offences punishable under CNS Act of 1997 are by its nature heinous and considered to be the offences against the society at large. Suffice it to say that the prosecution has successfully discharged its burden and by leading the defence evidence, the appellant has not established its innocence hence there is no occasion to set aside the elaborate impugned judgment based on correct appreciation of law, consequently, the same is maintained.
16. A perusal of jail role shows that the appellant has already served out more than 17 years of his sentence till date, is entitled for leniency, more particularly, he is a young man and is first offender. Therefore, to lead a life of responsible citizen and just to support his family members, we, by maintaining the conviction reduce the sentence of appellant to one already undergone. Concerned Jail Authorities are directed to release the appellant forthwith; if he is not required in any other case.
17. The appeal is disposed of in the manner indicated above.
J U D G E
Faisal&Aamir J U D G E