2010 PLP 71 (MLD)

SYED PIR ALI SHAH, J.

Through this criminal appeal, filed under section 48, read with section 410, Cr.P.C. against judgment, dated 11-5-2007, passed by the Special Judge, C.N.S.A. Shikarpur in Special Case No.257 of 2006 re: State v. Abdul Karim, has been impugned whereby appellant Abdul Karim has been convicted for the offence punishable under section 9(C) of C.N.S. Act, and as such, he has been convicted to undergo imprisonment for ten years. However, benefit of section 382-B, Cr.P.C. was extended to him. Brief facts of the prosecution case are that on 26-1-2006 at about 9-00 p.m. Excise Inspector Qurban Ali Meerani, lodged F.I.R. on behalf of State at Excise Circle P.S. Shikarpur stating therein that he accompanied by excise constables Ghulam Akbar Channan, Shabbir Ahmed Sanjrani and Deedar Ali Mangi left the P.S. vide Entry No.2 and came on Shikarpur-Jacobabad Road for general checking and stood at old 7-up Factory. They intercepted a Datsun Pickup No.B-2549 Banno at 6-30 p.m. only driver was available in the vehicle. He was got alighted from vehicle. On query, he gave his name as Abdul Kareem son of Abdullah Jan Syed resident Kuchlaq Quetta Balochistan. His personal search was conducted which led to recovery of Rs.800 being 8 notes of Rs.100 and a driving license in his name. During checking they found double bottom in the rear portion of the vehicle. Upper bottom was opened by the police and saw secret cavities (Khufia Khana) containing 60 slabs of Charas rapid in dark green colour plastic sheet whereupon digits 555 were inscribed. The substance was weighed and came to be 60 kilograms. Two plastic bags were arranged 29-29 (58) slabs were put in each bag while two slabs each weighing one kilogram were sealed separately as sample. The remaining substance was separately. Such memo. was prepared at the spot in presence of Mashirs/Excise constables Ghulam Akbar Channa and Shabbir Sanjrani. The accused and property including vehicle were brought at PS where complainant excise Inspector lodged F.I.R. against the accused for committing offence punishable under section 9(c), Control of Narcotic Substances Act, 1997. The sample was sent to the chemical examiner Sukkur at Rohri who reported 630/2006, dated 2-5-2006 was received in positive, hence the case was challaned in competent Court. After usual investigation the case was challaned by investigation officer and the appellant was sent up before learned trial Court for facing of his trial and after completing legal formalities, formal Charge Exh.4 was framed against the accused for offence punishable under section 9(C), C.N.S. Act, 1997 to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined complainant Inspector Qurban Ali Meerani, Exh.5 who produced memo. of arrest/recovery as Exh.5/A, F.I.R. as Exh.5/B, extract of Entry No.2 as Exh.5/C., report of the chemical examiner as Exh.5/D, Mashirs/Excise Constable Ghulam Akbar Channa, Exh.5/D, Mashirs/Excise Constable Ghulam Akbar Channa, Exh.6, whereafter learned DA gave up rest of the witnesses and closed the side of prosecution vide statement Exh.7. The statement of the appellant under section 342, Cr.P.C. was recorded at Exh.8, in which he pleaded his innocence and denied the allegation levelled against him. The appellant further stating that he has got little children. He is very poor person, Rs.55,000 were snatched by the complainant Excise Inspector Qurban Ali from him when he was going from Quetta to Karachi for purchasing old clothes as he is seller of old clothes at Quetta. He requested the complainant for return of money which annoyed him who then falsely booked him in false case by foisting two kilo grams of charas upon him shown recovery of 60 kilo grams of charas when remaining 58 slabs of contraband material were not charas. He has got no concern with vehicle. Driving license was secured from his pocket by complainant one day prior to registration of this case. At the trial, following points were framed for determination:-- (1) Whether substance recovered by police from the Datsun Pickup is charas? (2) Whether on 26-4-2006 at 6-30 p.m. old 7-Up Factory situated on Shikarpur-Jaccobabad Road, present accused Abdul Kareem was found transporting/trafficking/possessing 60 Kg. of charas in secret cavities of Datsun Pickup No. B-2549/Banno by a police party headed by Excise Inspector Qurban Ali Meerani of Excise Circle Shikarpur? After assessing the evidence, the learned trial Court decided the above points in affirmative and convicted and sentenced the appellant as stated above. We have heard the learned counsel for the appellant. He argued that the report of chemical examiner could not be utilized by prosecution as there is controversy between the version of the complainant and chemical examiner regarding the sample. It is contended that the remaining case property is tampered by complainant. His contention is that the Datsun in which recovery was allegedly made is not owned by the appellant/accused. His prayer is that the conviction and sentence of accused may be reduced considering mitigating circumstances as he has small children and the appellant having no relatives in Province of Sindh. Upon perusal of the case papers it is evident that after alleged recovery of 60 kilograms charas, two kilograms of charas were separated and sealed as samples while remaining substance was sealed separately. As per' chemical examiner's report Exh.5/D only two slabs were sent while remaining 58 slabs remained unexamined. Both the prosecution. witnesses namely, Qurban Ali Meerani Exhs. Inspector, the complainant of this case so also Excise Constable Ghulam Akbar Channa, have deposed in an unequivocal term that on the relevant day they were on general checking near old 7-Up Factory. When they intercepted a passenger Datsun Pickup No.B-2549/Banno being driven by present accused Abdul Karim. The appellant/accused has been convicted on account of alleged recovery of 60 slabs of Charas wrapped in dark green colour plastic sheets, whereupon digits 555 were inscribed. Evidently, only 2 slabs weighing 1 k.g. each were got examined from the Chemical Examiner. of course, prosecution witnesses have fully implicated the present accused and the case of the prosecution stands proved beyond any shadow of doubt to the extent of only 2 k.gs. duly certified by the Chemical Examiner. The appellant/accused cannot be convicted for the rest of 58 slabs as such, his conviction and sentence for 10 years with fine of Rs.200,000 and in default of payment of fine simple imprisonment for 6 months will be served. Learned counsel for the appellant during the course of arguments stated at Bar in presence of appellant/accused. Abdul Karim produced in custody that the appellant/accused will be satisfied if the conviction and sentence awarded by the trial Court is modified and sentence is reasonably reduced. Learned State Counsel fairly conceded to this proposition. We are, therefore, of considered view that looking to the mitigating circumstances on humanitarian ground that the appellant/accused having small children belonging to the Province of Balochistan, the conviction and sentence passed by the Court of learned Special Jude, C. N. S. A., Shikarpur, requires modification. As such, impugned judgment of conviction and sentence is modified and sentence of conviction is reduced to five years with fine of Rs.50,

000. In case of non-payment of fine, appellant/accused has to undergo simple imprisonment for two months more. In view of above observation and modification of impugned judgment, this appeal stands dismissed. These are the reasons for our short order, dated 18-3-2009. H.B.T./A-152/K Order accordingly.