JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Present:

1. Mr. Justice Sajjad Ali Shah.

2. Mr. Justice Muhammad Ali Mazhar.

CR. APPEAL NO.D-173 OF 2005.

Gul Sher and another . . . . . . .Appellants.

Versus.

The State. . . . . . . . .Respondent.

Appellants: Through Mr. Muhammad Sharif Sial.

Respondent the State: Through Mr. Muhammad Iqbal Kalhoro, Additional Prosecutor General.

Date of hearing: 21.04.2011.

Date of decision: 05.05.2011.

J U D G M E N T.

SAJJAD ALI SHAH,J:- Appellants have called in question judgment dated 03.12.2005, passed by Sessions/Special Judge, CNS. Nawabshah, in Sessions Case No.71 of 2004, whereby the learned Judge upon finding the Appellants guilty of possessing 240 Kilograms of Charas convicted them U/s 9(C) of Control of Narcotic Substances Act, 1997, and sentenced them to suffer rigorous imprisonment for 20 years and further to pay fine of Rs.100,000/- each and in case of default thereof, the Appellants to further undergo R.I. for 03 years with the benefit of section 382-B Cr.P.C.

2. Briefly, Excise Inspector Eijaz Ahmed Ansari of Excise Police Nawabshah Town on 26.5.2004 at 6.30 p.m. lodged an F.I.R. that he alongwith his subordinate staff namely EC Ghulam Hyder, EC Ghulam Mustafa, EC Mashooq Ali, EC Hussain Ali, EC Khalid Hussain, EC Illahi Bux and EC Gulzar Ali left the police station in order to detect excise crimes and when they reached near Engro-Urea godowns, Sanghar Road, they saw one truck coming from Sanghar Road. They stopped the truck, which has registration No.LA-661 and two persons were sitting in Driver Cabin. They were directed to come down. People present there were asked to act as mashir and on their refusal EC Ghulam Hyder and EC Khalid Hussain were joined as mashirs. On enquiry, driver of the truck disclosed his name as Gul Sher S/o Abdullah, whereas other person disclosed his name as Muhammad Ishaque S/o Murad Bux Brohi and that he was cleaner. The driver and cleaner both were searched and the truck was found empty, however on close monitoring it transpired that the walls of the truck were double. When the walls were de-bolted, Charas in the shape of bundles containing rods and strips was found concealed between them, upon taking it out 60 bundles in shape of rods and 180 bundles in shape of strips were found and the total weight thereof was 240 kilograms, out of which, 04 bungles of rods and 04 bundles of strips were separately sealed for chemical examination and the remaining bundles were sealed in six bags separately. Thereafter, the accused were arrested. When the accused Gul Sher was asked to produce the title documents of the truck, he said the owners of the truck namely Haji Akbar and Wajid shah had told them that the documents of the truck were handed over to Excise Police for payment of taxes.

3. After framing of formal charge under section 9(C) of Control of Narcotic Substances Act, 1997, the accused/appellants were put to trial as they pleaded not guilty, the prosecution examined Complainant Excise Inspector Eijaz Ahmed Ansari, who produced mashirnama of arrest and recovery, F.I.R, Chemical Examiner’s report and roznamcha entry dated 31.5.2005 and thereafter EC Ghulam Hyder Solangi, who acted as mashir, was examined. Thereafter both the accused/appellants were examined under section 342 Cr.P.C. and after hearing the advocates for the respective parties, the learned Judge by convicting the accused/appellants for an offence under section 9(C) of Control of Narcotic Substances Act, 1997 sentenced them to suffer R.I. for 20 years and fine of Rs.100,000/- each through impugned judgment.

4. Counsel for the Appellants has mainly contended that out of 240 kilograms of Charas, recovered in the shape of 60 bundles containing rods and 180 bundles in the shape of strips only 04 bundles of rods and 04 bundles of strips weighing 08 kilograms were sent to the Chemical Examiner, whereas the prosecution, in view of the dicta laid down by the apex Court in the case of Muhammad Hashim v. State (P L D 2004 S.C. 856), was required to send samples from each and every rod and strip and since this exercise was not done, therefore, at the most the Appellants can be held guilty for possessing 08 kilograms of charas and therefore the sentence of R.I. for 20 years with fine of Rs.100,000/- each is very harsh and at high side. It was next contended that the Excise Inspector Eijaz Ahmed Ansari, the Complainant, in his examination-in-chief has asserted that he has prepared mashirnama, whereas EC Ghulam Hyder, who acted as mashir, has stated that he has prepared mashirnama, which reflects that the case is a set up. It was next contended that the Complainant in his cross-examination admitted that he has not opened the remaining bundles and therefore he could not state with certainty that the remaining bundles contained Charas. Counsel further contended that admittedly the place of incident was 100 to 150 paces away from the petrol pump and therefore non-joining of private mashirs destroyed the case of the prosecution. In the end, it was contended that first portion of section 9(C) of Control of Narcotic Substances Act, 1997, which speaks of recovery from 01 to 10 kilograms, provides the minimum sentence of 14 years and since the Appellants are already behind the bars for more than 16 years including remissions, therefore, their sentence may be reduced to one already undergone.

5. On the other hand, learned A.P.G. has contended that 240 kilograms of Charas has been recovered from the Appellants and such drug paddlers do not deserve any lenient view. As to the proposition that out of 240 kilograms only 08 kilograms of charas were sent for chemical examination, learned A.P.G. contended that nowhere the Appellants have challenged that the remaining recovered substance was not charas, therefore, the dicta laid down by the apex Court in the case of Muhammad Hashim (supra) is not helpful to the case of Appellants. As to non-joining of private persons as mashirs, it was contended that the F.I.R. as well as the evidence of the Complainant clearly reflect that the private persons were asked to act as mashir and on their refusal excise constables were joined as mashirs and there is no bar which prohibits the Excise Staff to act as mashir. As to writing down the mashirnama, learned A.P.G. has read the cross-examination of the mashir, which says that he has written the mashirnama on the dictation of Complainant and per A.P.G. such minor technicalities can by no stretch of imagination win an acquittal or reduction of sentence for such drug paddlers. In the end, learned A.P.G. asserted that section 9(C) of Control of Narcotic Substances Act, 1997, provides death penalty, imprisonment for life or for a term not less then 14 years in case of recovery of 01 to 10 kilograms and in case of recovery beyond 10 kilogram it only provides punishment of imprisonment for life and in the present case though the recovery was 240 kilograms, the trial Court has taken very lenient view and therefore the appeal may be dismissed by maintaining the sentence.

6. We have heard the learned Counsel for the respective parties and have perused the record.

7. Taking up the first contention of the learned Counsel for the Appellants that since only 08 kilograms of Charas was sent for chemical examination, therefore, the sentence of the Appellants should be reduced to 14 years R.I, in our view, this proposition cannot be accepted for three reasons firstly that, though the recovery upto 10 kilograms of Narcotic Substance falls under 9(C) of Control of Narcotic Substances Act, 1997, which provides penalty of death, imprisonment for life or imprisonment for a term not less then 14 years, whereas the proviso to section 9(C) of the Act provides that if the quantity of Narcotic Substance exceeds 10 kilograms then the punishment shall not be less then imprisonment for life and the learned Judge by awarding sentence of 20 years has already dealt the Appellants under section 9(C) and not under the proviso to section 9(C) of the Act. Secondly, the prosecution witnesses were even not suggested by the accused/appellants that the remaining property produced in Court was not Charas or that the same has been tampered with and thirdly the appellants in terms of the dicta laid down by the apex Court in the case of ALI MUHAMMAD v. STATE (2003 SCMR 54) did not make a prayer before the trial Court for sending the entire case property to Chemical Examiner by challenging that it was not a narcotic substance.

8. As to the contention of learned Counsel regarding non-joining of private persons as mashir, perusal of the FIR as well as mashirnama of arrest and recovery reflect that attempt was made to join private persons as mashir and on their refusal excise constables were joined as mashirs, even otherwise, section 25 of Control of Narcotic Substances Act bars the application of section 103 Cr.P.C. and therefore, the contention is of no substance.

9. As to the contention of Counsel regarding preparation of mashirnama, EC Ghulam Hyder has in his cross-examination nowhere stated that he has prepared the mashirnama, on the contrary during cross-examination on a suggestion he has stated that he had written the mashirnama as dictated by the Complainant, even otherwise as held by the apex Court in number of cases that the approach of the Court while dealing with the cases of like nature should be dynamic and drug paddlers should not be acquitted by providing shelter of technicalities.

10. In view of what has been discussed above no case of interference or reduction of sentence is made out we, therefore, while maintaining the conviction, dismiss the appeal.

JUDGE