2018 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

By means of this appeal, appellant has assailed the judgment dated 28.02.2017 passed by learned Sessions Judge/Judge, Special Court for Control of Narcotic Substances, Shikarpur in Special Case No.511 of 2016 [re: State v. Ghulam Nabi Jaferi] arising out of Crime No.94/2016 of Police Station New Foujdari Shikarpur, whereby he has been convicted for offence punishable under section 9(c), C.N.S., Act. 1997 and sentenced to suffer RI for six years and six months with fine of Rs.30,000/- and in case of default of payment, to suffer S.I for six months more. However benefit of section 382-B, Cr.P.C. has been extended to him.

2. Precisely, prosecution case is that on 09.08.2016 S.I.P Ghulam Kambar along with his sub-ordinate staff left Police Station for patrolling in police mobile. During patrolling the police party reached near Pir Yakeen Shah at 1400 hours, arrested appellant and recovered one shopper containing eight pieces of charas which on weighing became 4000 grams. The police also recovered two currency notes of Rs. 100/- each and one knife from his possession. On inquiry the accused disclosed his name as appellant. Due to non-availability of private mashirs, the complainant prepared mashirnama of arrest and recovery in presence of police officials and sealed the property. Thereafter complainant brought the accused and case property at police station and lodged the FIR on behalf of the State. After usual investigation the I.O. submitted challan of the case in the Court of learned Special Judge Shikarpur.

3. The learned trial Court after completing legal formalities framed the charge against the appellant at Ex. 2, to which he pleaded not guilty and claimed trial.

4. At trial, the prosecution, in order to establish its case examined complainant S.I.P, Ghulam Qamber at Ex. 5, who produced mashirnama of arrest and recovery and FIR at Ex. 5-A to 5-B, SIP/IO, Hajan Shah at Ex. 6, who produced roznamcha entry, mashirnama of wardat and Chemical report at 6-A to 6-C, mashir PC, Amanullah at Ex.7 and then learned D.P.P closed the side of prosecution.

5. Statement of appellant/accused was recorded as required under section 342, Cr.P.C. in which he denied the allegations levelled against him, claimed his innocence and produced copy of FIR. However neither he examined himself on oath nor led any evidence in defence. The learned trial Court after hearing the counsel for the parties and appraising the evidence passed impugned judgment, hence he preferred instant appeal.

6. Learned counsel for the appellant contended that the impugned judgment passed by learned Special Judge is contrary to law and facts of the case; that the appellant is innocent and he has falsely been involved in this case by the complainant at the instance of DIG Sain Rakhio Mirani; that as per mashirnama of arrest and recovery eight pieces of charas were recovered but at the time of recording evidence of the PWs nine pieces were produced, which creates serious doubt; that there are contradictions in evidence of PWs which have not been considered by learned trial Court; that all the PWs are police officials and not a single private person was associated in recovery proceedings by the complainant which is clear violation of section 103, Cr.P.C. He lastly concluded that the learned trial Court has failed to consider the version of appellant given by him in his statement recorded under section 342, Cr.P.C., therefore, appellant is entitled for acquittal.

7. Conversely, learned DPG appearing for the State, while refuting the contentions of learned counsel for the appellant submitted that 4000 grams of charas, cash Rs. 200/ and a knife were recovered from the possession of appellant and the charas being costly can not be foisted upon him. He further submitted that the prosecution has succeeded to prove its case against the appellant beyond reasonable doubt, hence the learned trial Court has rightly convicted the appellant.

8. We have heard the arguments of learned counsel for the appellant, learned DPG for the State and have examined the record minutely.

9. Prosecution case is that the appellant was arrested by the police party near Pir Yakeen Shah and 4000 grams of charas, Rs. 200/ and one knife were recovered from his possession. The prosecution examined three witnesses, i.e, S.I.P/complainant Ghulam Qambar, I.O/S.I.P, Hajan Shah and mashir P.C. Amanullah, they fully supported the prosecution case and corroborated each others. They are consistent on the material points that the case property was recovered from the possession of appellant, which was sealed at spot and on next day it was sent to Chemical Examiner for report. Despite lengthy cross-examination by learned counsel for the appellant, nothing could be brought on record adverse to the prosecution case and even the learned counsel for the appellant during his arguments did not point out any material contradiction. He emphasized upon some minor contradictions which do creep due to lengthy cross-examination but same can be ignored. In this respect we are fortified by case of Zulfiqar Ahmed and another v. The State (2012 SCMR 492).

10. We have also examined the Chemical Examiner's report which reveals that the sealed parcel was sent to Laboratory on the next day of the recovery on 10.08.2016 and on the same day it was received at the Laboratory and seals of parcel were perfect as per copy sent by police. It has also been stated in the Chemical report that the parcel was containing charas and the report has been produced in evidence by investigating officer at Ex.6-C. Furthermore the appellant, has failed to prove enmity with the police of District Shikarpur. No doubt he has produced a copy of FIR No. 28/2013, offence under sections 302, 324, 148, 149, P.P.C. in his statement recorded under section 342, Cr.P.C. which was lodged by one Mirani against the accused persons who belonged to Jaferi community but the copy of FIR does not prove the enmity of accused with the complainant of this case who is Kunbhar by caste and has no concern with Mirani or Jaferi.

11. As far as the contention raised by learned counsel for appellant that all the witnesses are police officials and no private person was associated in recovery proceedings thus the complainant has violated the provision of section 103, Cr.P.C. It is pertinent to mention here that provision of section 25 of Control of Narcotic Substances Act, 1997, excludes the application of section 103, Cr.P.C, in narcotics cases, secondly it has come in evidence that at the time of recovery private persons were not present at the place of recovery and even the MUZAWAR of Pir Yakeen Shah was not available there, therefore the contention has no value. Furthermore, it has been held by honourable Supreme Court in many cases that the Police officials are good witness as any other public witness unless the animosity is proved against them, therefore, evidence of police officials could not be discarded merely on the ground that they were police officials. In this respect reference can be made to case of Nur Hassan v. The State (1993 SCMR 1608).

12. Adverting to next contention of learned counsel for the appellant that as per mashirnama of recovery eight pieces of charas were recovered and in Court nine pieces were produced, it is stated that as per mashirnama of recovery and FIR eight pieces of charas were recovered and sent to Chemical Examiner and report reveals that eight pieces were received at Laboratory, so at the time of de-sealing if any piece was broken and it became nine pieces, it will not spoil the case of prosecution.

13. For what has been discussed above it is manifest that the prosecution has succeeded to prove its case against the appellant beyond any shadow of doubt and we are convinced that no ground for interference in the impugned judgment is made out, therefore impugned judgment passed by learned trial Court was upheld and the appeal filed by the appellant was dismissed by our short order dated 25.07.2017 and these are reasons for the same. JK/G-16/Sindh Appeal dismissed.