IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Jail Appeal No. D- 11 of 2012.

Present:

Mr. Justice Abdul Rasool Memon.

Mr. Justice Abdul Maalik Gaddi.

Rasheed Sodhar. ………….Appellant.

Versus

The State. ...…..…Respondent.

Crime No. 235 of 2011,

Police Station Mehar, District Dadu,

Under Section 9 (c) of Control of

Control of Narcotic Substances, Act, 1997.

Appellant produced in custody.

Mr. Mohammad Bux Qazi, State counsel.

Date of hearing: 02.10.2013.

Date of Judgment: 09.10.2013.

J U D G M E N T

Abdul Maalik Gaddi, J-. The appellant was tried by the learned 1^st Additional Sessions/Special Judge (Narcotics), Dadu, for the offence punishable under Section 9 (c) of Control of Narcotic Substances Act, 1997. He found the appellant guilty for the said offence and consequently convicted and sentenced him to suffer rigorous imprisonment for five years and to pay fine of Rs.20,000/- or in default whereof to further undergo R.I for one month more vide impugned judgment dated 16.12.2011.

2. The appellant has filed present appeal through Superintendent Jail.

3. Brief facts of the prosecution case arising out of F.I.R No.235/2011 of P.S Mehar, are that on 09.7.2011, A.S.I Abdul Latif alongwith his subordinate at 11.00 a.m. at Khoondi road graveyard curve, caught hold of appellant alongwith shopper containing 12 rods of Charas; on his personal search nine notes of Rs.10/- and a T.T pistol of 30-bore were also recovered from his possession. The recovered Charas was weighed, it was found 1500 grams, out of it ten grams were separated from each piece for chemical examination. Such mashirnama of arrest and recovery was prepared in presence of H.C Manzoor Ali and PC Mohammad Uris.

4. A formal charge under Section 9 (c) of the Control of Narcotic Substances Act, 1997, was framed against the accused/appellant at Ex.2, to which he pleaded not guilty and claimed his trial vide his plea at Ex.3.

5. The prosecution in order to prove the charge against accused/appellant has examined complainant ASI Abdul Latif at Ex.4, who during his evidence has placed on record Roznamcha entry No.9, the mashirnama of arrest and recovery of accused at Ex.6, F.I.R at Ex.7, and report of Chemical Examiner at Ex.8, respectively. Prosecution has also examined P.W, H.C Manzoor Ali, at Ex.9, who is said to be mashir of arrest of accused and recovery of charas; who has supported the version of complainant. The prosecution has also examined Investigating Officer of the case, namely, Mohammad Usman at Ex.10, who has deposed regarding event of investigation since from receipt of F.I.R, recording statements of witnesses and sending material to chemical examiner.

6. The appellant denied the allegations of prosecution in his statement under Section 342 Cr.P.C. and stated that nothing was recovered from his possession, the prosecution witnesses are police official, interested and inimical to him. He neither examined himself on oath nor led any evidence in defence.

7. After evidence of the Investigating officer, the prosecution has closed its side, vide statement at Ex.11.

8. From the record it reveals that prosecution witnesses were duly crossed-examined by Advocate of the accused/ appellant in trial Court.

9. We have heard the appellant in person and learned State Counsel, and have gone through the evidence, documents on record and impugned judgment carefully.

10. Appellant submits that he is falsely implicated in this case, nothing was recovered from his possession, property is foisted upon him and prosecution witnesses are police official having inimical terms with him, therefore, their evidence could not be safely relied upon.

11. Learned State Counsel has supported the impugned judgment.

12. The learned trial Judge believed the evidence of these prosecution witnesses holding that the evidence of the said witnesses cannot be rejected merely on the ground that they are police officials. Besides this, he has also observed that the recovery of charas total weighing 1500 grams has been effected from the possessions of the appellant in presence of mashirs who have no inimical terms with appellant. It is also observed that though the prosecution witnesses were cross-examined by the Advocate for appellant, but their evidence remained unshaken.

13. We have also perused the evidence of complainant ASI Abdul Latif and PW, H.C Manzoor Ali, who is said to be mashir of the arrest and recovery have supported the prosecution case on each and every material particular of the case. Their evidence further gets corroboration by the mashirnama, F.I.R, as well as positive chemical report available on record at Ex.6 to 8. The prosecution witnesses were subjected to cross-examination, but their evidence remained un-shattered. Nothing has been brought on record by the appellant to show any ill-will of prosecution witnesses against him. Moreover, few minor type of contradictions in between the statements of the prosecution witnesses, which are inconsequential in nature and not enough to shatter the prosecution case. As far as the evidence of police officials in this case is concerned, it is settled law that the evidence of police officials to be considered as of other witnesses within the probability of truth and belief in accordance with law, nothing has been brought on record to show that police witnesses have any ill-will or grudge against the accused/appellant. Even otherwise, Section 103 Cr.P.C. has not been made applicable to the proceedings under the provisions of CNS Act, 1997. We are fortified by case law reported in 1999 P.Cr.L.J 728.

14. On perusal of the record it appears that sample parcel was dispatched for testing purpose after lapse of more than two months; but the delay in dispatching the sample parcel is also not helpful for the accused, as the evidence of witnesses of recovery of charas inspires confidence. In absence of any proof of tampering the material, delay in sending sample to laboratory for chemical analysis is of no avail to accused. In this regard, we are supported by case reported in 1999 P.Cr.L.J 812. In the cited case the Hon’ble Supreme Court has observed as under:

“Approach of the Court should be dynamic and Court should overlook technicalities in the larger interest of the country and the public at large. Court has to consider the entire material on record as a whole and if it is convinced that the case is proved, conviction should be recorded.”

15. As sufficient material was available before trial Court in shape of unimpeachable ocular evidence of complainant supported by Mashir on the point of recovery, coupled with mashirnama of arrest and recovery and report of Chemical Examiner which is answered in positive, for establishing the guilt of accused/appellant for the alleged charge and trial Court has rightly convicted the appellant.

16. The upshot of the above discussion is that, we do not find any infirmity or illegality in the impugned judgment of the trial Court calling for interference by this Court, therefore, we maintain the same with modification that as the alleged recovery is 1500 grams charas which is below 2 kilograms, therefore, keeping in view the terms of sentence provided against said recovery of charas by a full bench of Lahore High Court in the case of Ghulam Murtaza v. The State (PLD 2009 Lahore 362, as four years and six months, therefore, we hereby modify and reduce the sentence from five years and fine of Rs.20,000/- to four years and six months R.I and fine of Rs.20,000/-, and in case of non payment of fine, the appellant shall further undergo R.I for five month with benefit of Section 382-B Cr.P.C. With this modification the appeal stands dismissed.

Judge