2014 PLP 837 (MLD)

SHAUKAT ALI MEMON, J.

The Court of Special Judge (CNS)/Sessions Judge, Sanghar convicted the appellant Taj Muhammad and one Shahnawaz, in Special case No.45 of 2009 under section 9(b) of Control of Narcotic Substances Act, 1997 and sentenced them each to R.I. for three years and to pay fine of Rs. 10,000 or in default thereof to undergo S.I. for six months with extension of the benefit of section 382-B, Cr.P.C.

2. The case of the prosecution is that complainant SIP Muhammad Aslam Jamali of Police Station Tando Adam lodged F.I.R on 13-9-2009 stating therein that he along with his subordinate staff left police station for patrolling vide entry number 5 and when reached at New City gate via Baba Munna by-e-pass road, they received spy information that two persons were selling chars near graveyard of New City. On reaching there, they saw two persons who on seeing the police party tried to escape but were apprehended. On enquiry they disclosed their names as Taj Muhammad (appellant) and Shahnawaz. During personal search of appellant Taj Muhammad one black colour shopping bag was secured containing 12 big and small pieces of chars weighing 310 grams and two currency notes of Rs.50 and Rs.100 whereas 13 pieces of chars were secured from Shahnawaz weighing 360 grams. The ten grams of charas recovered from possession of each culprit is stated to have been separately sealed as sample for sending to chemical examiner while remaining were kept intact in other sealed parcels. On enquiry both disclosed their survival by sale of chars. Such memo of arrest and recovery was prepared in presence of mashirs namely H.C. Muhammad Rafique and driver P.C. Sahib Dino. The police party then on return to police station lodged the F.I.R which after usual investigation culminating into submission of challan.

3. At trial, prosecution examined complainant SIP Muhammad Aslam Jamali, mashir Muhammad Rafique and I.O. SIP Muhammad Amin Rajar and through them mashirnama of the seizure of the chars, departure and arrival entries, F.I.R and the chemical report were produced and exhibited. The appellant and accused Shahnawaz in their 342, Cr.P.C. statement denied possession of the seized charas, claimed their innocence and alleged their false implication at the instance of Zamindar Mukhtiar Shoro on account of leaving his hariship. However, neither they owned the case property nor opted for their examination on oath or leading any evidence in defence.

4. The trial Court found the prosecution evidence trustworthy and recorded the conviction and sentence, as above.

5. The Criminal Appeal No.39 of 2011 of appellant Shahnawaz was taken up on 24-4-2012, who at the very out set prayed for mercy and did not press the appeal with the submission of reducing the sentence to already undergone. Accordingly his appeal was dismissed by reducing the sentence already undergone as well as fine of Rs.500 or in default to suffer S.I. for three days.

6. Inter alia, it is contended by the learned counsel for the appellant Taj Muhammad that judgment is in violation of section 103, Cr.P.C; that sample for chemical examiner was sent with delay of three days; that colour of envelope sealed at spot did not match with the colour of envelope of the sample delivered at the office of chemical examiner and that A.S.-I. Shoukat Ali delivering the sample to the chemical examiner has not been examined as such impugned judgment suffers from patent illegality, thus liable to be set aside.

7. Conversely learned D.P.G. submitted that evidence of all the P.Ws. is consistent, trustworthy and free from doubts. It is next contended that police personnel are equally good as members of public to act as mashirs while there is no mandatory provisions for associating the private persons as mashirs in view of section 25 of CNS Act, 1997.

8. Lastly it is submitted that delay of three days in sending the samples is quite normal and no prejudice is caused to the defence.

9. We have carefully gone through record, impugned judgment in the light of arguments advanced at bar. The impugned judgment reveals that besides evidence of complainant, the member of police party, H.C. Muhammad Rafique has also been examined as mashir.

10. We are conscious of the fact that in the prevailing law and order situation no private person do voluntarily associate with search and recovery for fear of revenge by the members of drug mafia. We are also conscious that there is no enactment for providing protection to the prosecution witnesses against their fear and these appear to be all the more reasons for the legislatures to introduce provision of section 25 of CNS Act, 1997, as such the alleged non-compliance of section 103 of Cr.P.C. is of no consequences in particular when mala fides against these witnesses are not proved.

11. The sending of samples late by three-four days is quite normal because of official bottle-necks of getting necessary approval by the I.O. and selecting of the person delivering the sample.

12. Reverting to the contradictions within the evidence of complainant and mashirs, we find these minor (sic) not affecting the outcome of trial.

13. However, in the case of Ghulam Murtaza reported as PLD 2009 Lahore 362, the parameters for conviction and sentence for quantity recovered are prescribed and according to it, the conviction and sentence to be awarded for quantity from 300 upto 600 grams of Charas should not be more than R.I. for 18 months and fine of Rs.11,000 or in default S.I. for 4 months.

14. Accordingly while maintaining the impugned judgment, we reduce the sentence from three years to 18 months and fine to rupees nine thousand. In case of non-payment, the appellant would undergo S.I. for two months more. The appellant has served out the sentence less than the sentence now awarded, thus is taken into custody and remanded to serve out the remaining period.

15. Above are the reasons of our short order dated 24-9-2013. HBT/T-4/Sindh Sentence reduced.