IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Appeal No. D- 79 of 2011.

Present: Mr. Justice Khadim Hussain M. Shaikh.

Mr. Justice Amjad Ali Sahito.

Appellant: Muhammad Abid Pathan.

None present for the appellant.

Respondent: The State, through Mr. Yasir Arafat Seelro, A.P.G.

Date of hearing: 24.04.2018.

Date of the decision: 24.04.2018.

J U D G M E N T

Amjad Ali Sahito, J.– Appellant Muhammad Abid son of Safoor Gul Pathan was tried by the learned Sessions Judge/ Special Judge (CNS), Kashmore @ Kandhkot, in Special Case No. 06 of 2011, arising out of Crime No.01 of 2011, for offence under Section 9 (c) of the Control of Narcotic Substance Act, 1997, registered at Excise Police Station Kandhkot. By judgment dated 17.08.2011, the appellant was convicted for offence punishable under Section 9 (c) of Control of Narcotic Substance Act, 1997, to suffer rigorous imprisonment for three years and was imposed fine of Rs.60,000/- and in default of payment of fine, it was further ordered that appellant shall suffer S.I. for six months more. However, the benefit of Section 382-B Cr.P.C. was also extended to the appellant.

2. The case of prosecution in brief is that, on 20^th January, 2011, the Excise Police party headed by Inspector Shamasuddin recovered contraband charas weighing two kilograms from possession appellant near Toll Plaza on Kandhkot bypass road, when he was travelling in a coach bearing registration No.1077-Peshawar. After completion of usual investigation, the appellant was sent for trial.

3. The charge at Ex.2 was framed under Section 9 (c) of the Control of Narcotics Substances Act, 1997, against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried.

4. At the trial, in order to establish accusation against the appellant, prosecution has examined complainant Inspector Shamasuddin Chacher at Ex.3; he produced mashirnama of arrest and recovery at Ex.3-A, copy of F.I.R at Ex.3-B, positive chemical report at Ex.3-C and roznamcha entries at Ex.3-D and Ex.3-E. PW Excise Constable Mir Jeeand at Ex.4. These witnesses were cross examined by the counsel for the appellant and thereafter, leaned District Public Prosecutor closed the prosecution side vide Statement at Ex.5.

5. Statement of the appellant was recorded under Section 342 Cr.P.C. at Ex.6, in which he has denied the allegations as leveled by the prosecution. He however, did not examine himself on oath, but examined one Liaquat Mehmood as defence witness at Ex.7.

6. The trial Court after hearing the parties’ counsel has convicted and sentenced the appellant as stated above. Hence, the appellant has preferred this appeal against the impugned judgment.

7. The appellant and his counsel are called absent, as after his release on bail vide Order dated 25.8.2011 the appellant absconded away and never appeared, so also his counsel also chose to remain absent. In such a situation, there was no other alternative but to proceed with the instant appeal as per provision of Section 423 Cr.P.C. Heard learned A.P.G.

8. Learned A.P.G. while supporting the impugned judgment, has argued that prosecution has proved its case against the appellant; that excise police officials have no enmity to foist the Charas upon the appellant; that copy of positive report of Chemical Examiner has also been produced in evidence. He therefore prays that the appeal may be dismissed.

9. We have heard the learned Prosecutor for the State and gone through the evidence with his assistance.

10. It is settled principle of law that mere fact that prosecution witnesses belonged to police department by itself cannot be considered as valid reason to discard their statements, police employees are the competent witnesses like any other independent witnesses and their testimonies cannot be discarded merely on the ground that they are police officials. In the instant case, there has been brought no proof of enmity with the complainant as well prosecution witnesses thus in absence thereof the competence of prosecution witnesses regardless of their being officials was rightly believed.

11. From the perusal of record it appears that the appellant was caught red-handed; narcotic substance (Charas) was recovered from his possession and report of the chemical examiner received positive. These are always sufficient to conclude that prosecution successfully discharged its burden thereby shifting the burden upon the accused within meaning of Section 29 of the Act. Such burden would require the accused to firstly cause dent in prosecution case and secondly to establish least justify possibility of false implication or foisting of huge quantity of charas.

12. In the instant matter, the recovery witnesses remain consistent on each and every material aspect such as manner of departure till arrest and recovery of charas. The PW-1 complainant Shamasuddin Chacher and E.C- Mir Jeeand, both were cross-examined at length by the counsel for the appellant but no material contradictions have been extracted from therein. Furthermore, no enmity, ill-will or grudge has been proved against the prosecution witnesses, for falsely implication of the appellant in this case.

13. Considering the above facts and circumstances of the case, we are of the view that prosecution has succeeded to bring the guilt of accused at home and no any material illegality or serious infirmity committed by the trial Court while passing the impugned judgment is found, and thus the appeal is liable to be dismissed. However, we would like to examine the case of appellant in the view of the cases Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362) and Ameer Zeb v. The State (PLD 2012 Supreme Court 380).

14. According to prosecution case, the appellant was arrested while keeping in his possession two kilograms of contraband Charas lying in the bag, in shape of fifteen pieces, out of which two pieces weighing 200 grams were sent for chemical examination; the report whereof came in positive; however, the trial Court finding the appellant guilty of having in possession of entire charas weighing two kilograms he was convicted and sentenced to suffer rigorous imprisonment for three years and pay fine of Rs.60,000/- and in default of payment of fine to undergo S.I for six months more for offence under Section 9 (c) of Control of Narcotic Substance Act, 1997. In these circumstances of the case, presumption was that only two pieces weighing 200 grams were taken out of fifteen pieces as sample and were sent to the chemical analyzer; so far as the remaining 13 pieces were concerned; these were not sent for analyzing, therefore, the appellant cannot be burdened for remaining quality of contraband Charas. Therefore, keeping in view the law laid down in the case of Ameer Zeb v. The State (supra), and by applying the sentencing policy laid down in the case of Ghulam Murtaza and another v. The State (supra), we while holding that the appellant is responsible only for the recovery of 200 grams Charas, reduce his sentence from three years to one year and three months and fine from Rs.60,000/- to Rs.9,000/-, or in default of payment of fine to undergo for three months and fifteen days.

15. Accordingly, vide short Order dated 24.04.2018, the appeal was dismissed and the sentence was reduced to a term, as stated above. The appellant after his release from jail has absconded away as such order of suspension of his sentence is re-called.

16. Since, the appellant has absconded away and as per report received, his whereabouts are not known, as such office is directed to issue a perpetual N.B.W for the arrest of appellant with the direction that whenever appellant Muhammad Abid son of Safoor Gul Pathan is arrested, he should be remanded to jail to serve out his remaining sentence. Whereas, record shows that the amount of surety bond worth Rs.100,000/- deposited in shape of cash has already been forfeited.

17. These are the detailed reasons for the short Order dated 24.04.2018.

JUDGE