IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Before:

Mr. Justice Omar Sial

Mr. Justice Khalid Hussain Shahani

Criminal Appeal No.D-45 of 2022

Manthar Ali Totani

V/S

The State

Appellant: Manthar Ali son of Ali Khan Totani

Through Mr. Muhammad Afzal Jagirani, Advocate

State: Through Mr. Aitbar Ali Bullo, Deputy

Prosecutor General, Sindh.

Date of Hearing: 27.02.2025

Date of Decision: 11.03.2025

J U D G M E N T

Omar Sial, J.- Manthar Ali Totani was arrested on 18.01.2022 with five kilograms of charas in his possession. F.I.R. No. 8 of 2022 was registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at the Warah police station.

2. Totani pleaded not guilty and claimed to be tried. The prosecution examined the following witnesses. PW-1 A.S.I. Ali Gul Brohi was the complainant and the investigating officer. PW-2 Javed Ali witnessed the arrest and recovery. PW-3 WHC Deedar Ali was the maalkhana in charge. PW-4 P.C. Ayaz Chandio was the policeman who took the narcotics from the maalkhana to the chemical laboratory. In his section 342 Cr.P.C., the appellant denied any wrong and claimed that a false case had been registered against him on the behest of two local landlords, Azizullah and Barkat Mugheri.

3. At the end of the trial, the learned Special Judge for CNS, Kamber-Shahdadkot, convicted Totani and sentenced him to fourteen years imprisonment and a fine of Rs. 200,000. In case of a default, he would have to remain in prison for another two years.

4. We have heard the learned counsel for the appellant, who submitted that while the incident occurred on 18.01.2022, the place of incident was not examined until 19.01.2022; that section 103 Cr.P.C. was not complied with; that the complainant and the investigating officer were the same; that the whole seized property was not sent for analysis; and lastly, that the narcotics were sent for chemical analysis two days after the seizure. The learned Deputy Prosecutor General supported the impugned judgment. Our observations and findings are as follows.

5. We will first address the arguments rendered by the learned counsel for the appellant. The prosecution case will not be adversely impacted if the place of incident was not examined the same day. In narcotics cases, examining the place of incident is usually a formality. Very little hinges on whether the place of incident was examined or not. In any case, the incident scene was examined, albeit the next day. The argument regarding section 103 Cr.P.C, is misconceived as section 25 of the CNS Act, 1997 expressly excludes the applicability of section 103 Cr.P.C. in narcotic cases. Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rule 2001 prescribes 72 hours to dispatch the samples for analysis from the time of seizure. In this case, the sample within the specified time. Even otherwise, it has been held in Tariq Mehmood vs the State that (PLD 2009 SC 39) even the 72 hour rule was directory and not mandatory. Learned counsel could not point out any law restraining the complainant from being the investigating officer. With much respect, none of the foregoing arguments raised by the counsel are strong enough to upset the conviction.

6. However, we notice that the prosecution may have erred in collecting samples of the seized goods. The record reflects that five slabs of charas with an aggregate weight of 5 kilograms were seized. Samples were not taken from each slab, instead one slab from the total seizure was sent for analysis. In Ameer Zeb vs The State (PLD 2012 SC 380) it was held: “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 different packets/cakes/slabs are not kept separately for their separate analysis by the Chemical Examiner then the 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.” Following what the Supreme Court has specified, for the safer administration of justice, the appellant would be held liable for the one slab of charas (weighing 1000 grams) sent to the chemical analyst.

7. The record reflects that the appellant was caught red-handed with a substantial quantity of charas. The chemical analyst confirmed the substance seized to be charas. The appellant did plead that a false case had been registered against him on the behest of two landlords; however, he was arrested from Karachi. However, he declined to be his witness or produce any other witness to support his plea of alibi or enmity with the landlords. No nexus was established between the landlords and the police. The maalkhana in charge together with the courier were examined at trial. An unbroken chain of safe custody from the time of seizure till the deposit of the narcotics in the chemical laboratory was established by the prosecution. Possession of one kilogram of charas according to the amended Control of Narcotic Substances Act, 1997 carries a potential sentence of nine to fourteen years and a fine of Rs. 80,000 to Rs. 400,000. We find no reason to interfere with the conviction awarded to the appellant by the trial court. We, however, deem it appropriate to reduce the sentence and fine awarded to him to nine years imprisonment and a fine of Rs. 80,000. The appellant will stay in prison for another two months if he does not pay the fine. The benefit of section 382-B Cr.P.C will be given to the appellant.

8. The appeal is dismissed subject to the amended sentence in the preceding paragraph.

Judge

Manzoor