IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Jail Appeal No. D- 45 of 2015.

PRESENT

Mr. Justice Aftab Ahmed Gorar,
Mr. Justice Khadim Hussain Tunio,

Appellant: Turk Ali Brohi, through Messrs Ahsan Ahmad Quraishi and Ahmed Bux Abro, Advocates.

Respondent: The State, through Mr. Khadim Hussain Khooharo, Addl.P.G.

Date of hearing: 12.06.2018.

Date of decision: 12.06.2018.

JUDGMENT

KHADIM HUSSAIN TUNIO, J. By this criminal appeal, the appellant has assailed the judgment dated 30.04.2015 passed by the Special Judge (CNS), Jacobabad in CNS Case No.11 of 2014, whereby the appellant was convicted for offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997, and sentenced to R.I. for life and to pay a fine of Rs.100,000/- and in case of default in payment of fine, the appellant shall further undergo S.I for six 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 the receipt of spy information, the complainant along with subordinate staff left police station, reached at Excise check post, stopped a truck, recognized it by its registration number, after an in-depth search located a white plastic bag containing 20-plastic packets and each of the packet was found containing two slabs of charas weighing 500 grams, totaling to 40-slabs weighing 20-kilograms. A sample weighing 200 grams from each slab totaling 08 kilograms was taken for analysis and rest 12 kilograms charas was sealed separately; memo of arrest and recovery prepared and charge was submitted before the trial Court after trial.

3. A formal charge was framed against the appellant/ accused; he pleaded ‘not guilty’ and claimed his trial. During the trial, prosecution examined in all two witnesses, namely, complainant Excise Inspector Muhammad Iqbal Arbani and mashir EC Ghulam Akbar.

4. After that, statement of appellant was recorded under section 342, Cr.P.C, wherein he denied the allegations of prosecution and pleaded his innocence. However, neither he examined himself on oath nor led any evidence in his defence.

5. The learned counsel for the appellant has inter-alia contended that the impugned judgment is not sustainable under the law, as the material contradictions in the evidence of prosecution witnesses have not been appreciated and considered by the learned trial Court while convicting the appellant; that the appellant was arrested from a truck on a busy road but no passerby was made witness in the instant case; the punishment awarded to the appellant is harsh and also against the authoritative proposition of law; that the place of incident is a populated area, but in-spite of that the police has not made any efforts to join an independent person to act as witness or mashir. In the last, learned counsel contended that harsh punishment has been awarded to the appellant, which is against the sentencing policy provided in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), approved by Hon’ble Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380). Learned counsel in support of his contentions also referred to case of Fareedullah v. The State (2013 SCMR 302), Mst. Nasreen Bibi v. The State (2014 SCMR 1603) and case of Para din and others v. The State (2016 SCMR 86).

6. Conversely, the learned Addl. P.G. appearing for the State has argued that during cross-examination no material contradiction is surfaced; charas was recovered from the appellant, 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 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.

7. Heard the learned counsel for the parties and perused the material available on record.

8. Perusal of record shows that the prosecution in order to substantiate the charge against the appellant/accused examined complainant Excise Inspector Muhammad Iqbal Arbani and mashir EC Ghulam Akbar. We have gone through the evidence of both these witnesses and have seen that they both have deposed in same line that on spy information they stopped the truck in question, arrested a suspected person and found Charas in the truck. Sample from all of the slabs were separated and sent for chemical examination. It is pertinent to mention here that during cross-examination, defence counsel failed to bring on record any defect regarding the recovery of Charas, separation of samples for chemical examination or any variation in the weight of samples sent to the Chemical Examiner. We have also noticed that samples were sent within time for chemical examination and Chemical Examiner's report is in positive. It is also worth to mention here that there is no any suggestion from the defence side regarding any enmity of prosecution witnesses against the appellant to implicate him falsely or to foist such a huge quantity of narcotic material upon him.

9. 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 witness and their testimonies cannot be discarded merely on the ground that they are police officials. Nothing has been brought on record by the defence against the Investigating Officer of the present case to show any animosity or ulterior motives of false implication. Reliance can be placed on the case of Nazeer Ahmed v. The State (2004 SCMR 1361).

10. 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.

11. However, so far quantum of the sentence is concerned, learned counsel for the appellant has contended that harsh punishment has been awarded to the appellant, which is against the sentencing policy as provided in case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), which was duly approved by Hon’ble Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380) and cases of Fareedullah v. The State (2013 SCMR 302), Mst.Nasreen Bibi v. The State (2014 SCMR 1603) and Para din and others v. The State (2016 SCMR 86). On these assertions, we would like to examine case of appellant in light of the above referred cases.

12. According to prosecution case, the appellant was arrested while being in possession/ transporting 20-kilograms of contraband Charas in a truck in shape of 20 packets and each of the packet contained two slabs of charas weighing 500 grams, totaling to 40-slabs weighing 20-kilograms. A sample weighing 200 grams from each slab, totaling 08 kilograms was sent for chemical examination; the report whereof came in positive; however, the trial Court held the appellant guilty of possessing entire charas weighing 20 kilograms and while convicting sentenced him to suffer R.I for life and to pay fine of Rs.100,000/-, 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 the circumstances of the case, as per sentencing policy only 08 kilograms of Charas sent to the chemical analyzer was to be considered while convicting the appellant; and insofar as the remaining 12 kilograms charas is concerned, the same was not sent for analysis, therefore, the appellant could not be burdened for the said remaining quality of Charas. Accordingly, keeping in view the law laid down by Hon’ble Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380) and by applying the sentencing policy laid down in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), so also the cases of Fareedullah v. The State (2013 SCMR 302), Mst. Nasreen Bibi v. The State (2014 SCMR 1603) and case of Para-din and others v. The State (2016 SCMR 86), we while holding that the appellant responsible only for the recovery of 08 kilograms Charas, reduce his sentence from R.I for life to R.I for ten years and six months, with fine of Rs.50,000/-, and in default of fine to undergo S.I for 08 months more.

13. The Hon’ble Apex Court in the case of Niaz-ud-din v. The State (2007 SCMR 206), while dismissing the appeal reduced sentence of imprisonment of the petitioner from ten years to six years on ground that petitioner was not previous convict and there was no instance of his involvement in drug trafficking. In the instant case, also the appellant is neither shown to be a previous convict nor involved in any other case of drug trafficking.

14. For the aforementioned detailed reasons, the instant appeal was dismissed by us by short Order dated 12.06.2018, and the sentence of the appellant was reduced as stated above. These are the reasons for the said short order.

JUDGE