2008 PLP 978 (MLD)

DR. RANA MUHAMMAD SHAMIM, J.

Applicants have preferred. above appeal and revision against the judgment, dated 11-11-2000 passed by learned III-Additional Sessions Judge Khairpur whereby the respondent/accused Mansoor Ahmed was acquitted while respondent/accused Ali Hassan was convicted for the offence under section 14 of C.N.S. Act to suffer R.I. for two years and to pay fine of Rs.30,000, in default of which to suffer further six months. Benefit of section 382-B, Cr.P.C. was also awarded to the accused.

2. The facts out of which the above appeal and revision arise are common so also the impugned judgment hence I propose to dispose of the same by this common judgment.

3. The prosecution case is that on 11-2-1999 S.I. Sher Ali Sherazi with subordinate staff proceeded on patrolling and on an spy information that accused Ali Hassan Brohi is dealing in narcotic business by using his house as Adda (Den) where huge quantity of narcotics is available they reached in his house situated at Mohallah Ranipur. On seeing the police party accused Ali Hassan became confused and on asking about the narcotics he after digging out produced a plastic blue colour Katta from the chaff containing six slabs pieces of 3200 charas wrapped in a white plastic polythene bag and a Bola of opium of 1400 grams wrapped ..in white plastic bag. Out of which ten grams of each was kept in Khaki bag for sending to chemical examination while remaining kept in the Katta. Co-accused Mansoor Ahmed was also found there for which accused Ali Hassan disclosed that he is his relative and used to bring narcotics from Quetta and give it to him. Consequently, both the accused persons were arrested and a case under sections 6, 9, 12, 13, 14 and 15 of C.N.S. Act, 1997 was registered against them.

4. During the trial charge was framed against the accused, to which they pleaded not guilty thus the matter was put up for trial and Sher Ali Shah, Inspector Anti-Narcotics Force Sukkur was examined as Exh.9 while mashir Khuda Bakhsh as Exh.10 thereafter the 'prosecution was closed as Exh.11.

5. The statements of accused were recorded as Exh.12 and 13 in which they denied the allegation levelled against them. They did not examine themselves on oath; however, examined D.W. Ghulam Muhammad and Muhammad Saleh as their defence witnesses.

6. On the basis of material available on record and after hearing the learned counsel for the parties, according to the learned trial Court following points arose for determination:-- (a) Whether 3200 grams of charas and 1400 grams of opium were found from the possession of accused in the house of accused Ali Hassan after apprehension at the above date and time and place, or otherwise? (b) Whether the accused have been implicated at the instance of Exh. S.H.O. Kolachi and Narcotic substance has been foisted upon them? (c) Whether accused have challenged the report of chemical analyzer by means of any application?

6. The learned trial Court heard the learned counsel and with their assistance perused the material available on record and passed the judgment acquitting accused Mansoor Ahmed while convicting accused Ali Hassan, as stated above, hence these Revision and appeal with a prayer that the sentence awarded to Ali Hassan may be enhanced while accused Mansoor Ahmed may also be convicted.

7. The contentions of learned counsel for the applicant/appellant are that the witnesses have fully corroborated the prosecution case; that the learned trial Court has not properly appreciated the evidence of the complainant and the prosecution witnesses and has not applied his judicial mind while deciding the case; that the offence with which the accused were charged is under section 9(c) of C.N.S. Act, 1997 but the learned trial Court has convicted accused Ali Hassan for two years only while acquitted accused Mansoor Ahmed and thus the impugned judgment is liable to be set aside; that the learned trial Court while deciding the case has not applied the provisions of C.N.S. Act, 1997 and passed the impugned judgment on surmises and conjectures.

8. We have heard learned counsel appearing for the State and perused the material placed before me. Notices to respondents could not be served hence no one is present on their behalf.

9. From the perusal of record, the main crux of the matter appears to be that the charge against the accused was framed under section 9(c) of C.N.S. Act, 1997 only which provides punishment for death, or imprisonment for life, or imprisonment for a term which may extend to fourteen years while the applicant Hassan Ali has been convicted for two years under section 14 of the ibid law. For the convenience sake the provisions of section 14 are reproduced:-- "

14. Prohibition on aiding, abetment or association in narcotic offences. (1) No one shall, within or outside Pakistan, participate in, associate or conspire to commit, attempt to commit, aid, abet, facilitate, incite, induce or counsel the commission of an offence punishable under this act.

10. From the bare reading of the above section, there appears to be flaw/ambiguity in the impugned judgment whereby the appellant Ali Hassan has been convicted under section 14 of the C.N.S. Act though the charge proved against him was framed under section 9(c), hence in all fairness in our humble view the case should be remanded to the learned trial Court.

11. In view of the above, both the Criminal Revision Application and Criminal Acquittal Appeal are allowed and the impugned judgment is set aside and the case is remanded to the learned trial Court for de novo consideration and decide the matter in its own merits according to law. Above are the reasons of our short order, dated 26-3-2008. H.B.T./S-27/K Order accordingly.