JUDGMENT SHEET.
HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.
CRIMINAL APPEAL NO.D-133 OF 2006.
Date Order with signature of Judge
PRESENT: 1. Justice Ahmed Ali M. Shaikh.
2. Justice Salman Hamid.
Appellant: Noor Nabi s/o Muhammad Hashim, Khuman through Mr. Nandan A. Kella, Advocate.
Respondent: The State through Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh at Hyderabad.
Date of hearing: 27.08.2010.
Date of judgment: 29.09.2010.
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Ahmed Ali M. Shaikh J: This appeal is directed against the judgment dated 28.8.2006 passed by Special Judge, Control of Narcotics Substances, Hyderabad in Special Case No.11/2005 culminating from Crime No.01/2005 of P.S Excise Crime Branch, Hyderabad for offence punishable U/s 9 (c) of C.N.S Act, 1997, whereby the appellant was convicted and sentenced to suffer R.I for 03 years and to pay fine of Rs.50,000/-, in default of payment of fine, to suffer additional S.I for 06 months. However, the benefit of Section 382-B Cr.P.C was extended to the appellant.
Briefly stated, facts of the prosecution case are that on 31.1.2005, Excise Inspector Arslaan Mujeeb, Crime Branch alongwith his subordinate staff left his office vide Entry No.116 and on a secret information, they arrested the appellant near the hotel of Anoo. Appellant was found in possession of 02 Kg opium, out of which 10 grams were sealed independently for chemical examination while remaining opium was sealed separately. Such mashirnama was prepared in presence of EC Muhammad Usman and EC Muhammad Saleem.
After usual investigation, the challan was submitted before the concerned Court.
After codal formalities, formal charge was framed against the appellant who professed his innocence and claimed trial.
To substantiate its case, prosecution examined EC Muhammad Usman and Excise Inspector Arslaan Mujeeb and then closed its side.
Appellant was examined U/s 342 Cr.P.C, whereby he pleaded his innocence and claimed that he has been falsely implicated in this case. He further stated that he used to restrain the narcotics dealers who had support of excise officials and due to that, they got annoyed and implicated him in the instant case. However, on the application of Defence Counsel, Dr. Jalil Qadir, Chemical Examiner, Government of Sindh, Karachi was examined in defence.
After hearing the learned counsel for the parties, trial Court passed the impugned judgment as stated above.
Mr. Nandan A. Kella, learned counsel for the appellant contended that appellant has been falsely involved in this case; the opium has been foisted upon the appellant; PWs have contradicted with each other on material aspects and their evidence is not confidence inspiring; the impugned judgment is bad in law and same is a result of misreading and non-reading of the evidence; per learned counsel, the impugned judgment is not sustainable therefore, same is liable to be set aside.
Conversely, Mr. Shahid Ahmed Shaikh, learned A.P.G for the State opposed the contentions raised by learned counsel for the appellant and supported the impugned judgment.
Heard learned counsel for the parties and perused the record.
It appears that PWs EC Muhammad Usman and Excise Inspector Arslaan Mujeeb have reiterated the same facts as mentioned in the FIR and in the memo of arrest and recovery. Upon perusal of their depositions, we did not find any material contradiction. However, there seems to be some minor and irrelevant contradictions which are not fatal to the prosecution case. The depositions of both the PWs are constant and inspiring confidence with regard to the material points viz. place of arrest, recovery of opium from the appellant, the quantity of opium as well as the sample sent to the Chemical Examiner.
For the foregoing reasons, we do not find any merit in the instant appeal which is accordingly dismissed. However, upon a perusal of jail roll, it appears that appellant has already served out the substantial portion of his sentence i.e. 03 years, 03 months and 27 days while unexpired portion of his sentence is 02 months and 03 days. Since the appellant is stated to be first offender and not indulged in similar activities therefore, we modify the sentence of the appellant i.e. R.I for 03 years and fine of Rs.50,000/- to that of already undergone and fine of Rs.10,000/-.
With the above modification, this Criminal Appeal No.D-133 of 2006 stands dismissed. The appellant is on bail, his bail bond stands cancelled and surety is discharged.
JUDGE
JUDGE