1992 P Cr (PLP)

MIR HAZAR KHAN KHOSO, J.

This appeal is directed against the judgment, dated 24-9-1991, passed by the learned Sessions Judge, Karachi East, whereby the appellant was convicted for offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 hereinafter referred to as the Order) and sentenced to suffer imprisonment for life, twenty stripes and fine of Rs.1,00,000 in default to undergo R.I. for one year more with benefit under section 382-B, Cr.P.C.

2. It is case of the prosecution that on 21st April, 1990, M.Z. Soharwardi, Assistant Excise and Taxation Officer, Karachi East received spy information that a person was having narcotics and standing near Natha Khan Goth Bridge at Shahrah-e-Faisal, Karachi. He alongwith his other staff went to that place for the purpose of apprehending the culprit. He collected Habib Ahmad and Khalil Ahmad as Mashirs from the public. He noticed the presence of the appellant at the pointed place. The appellant was arrested. A bag containing five packets was recovered from his possession. Each packet was found one kilogram on weighment. Ten grams was taken from each packet for the purpose of sample. The samples as well as the recovered packets were sealed into separate parcels. A Mashirnama was prepared, which was attested by Habib Ahmad and Khalil Ahmad. F.I.R. was registered at the Police Station Excise, Karachi East for offence under Articles 3 and 4 of the Order against the appellant. Samples were sent to the expert whose report is in positive. Even otherwise the Court also sent the remaining material for examination to the expert, whose report in respect of the same is also in positive. However, after usual investigation the appellant was challaned before the Court. The case came for trial before the Court of the learned Sessions Judge, Karachi East, where the appellant did not plead guilty to the charge under Articles 3 and 4 of the Order.

3. In support of the case the prosecution examined P.W.1 Habib Ahmad and P.W.2 M.Z. Soharwardi, Excise and Taxation Officer.

4. The appellant in his statements recorded under sections 342 and 340(2), Cr.P.C. denied the allegation and examined Races Ahmad in his defence. In his 340(2), Cr.P.C. statement he has stated as under:-- "I produce my birth certificate Exh.15. Some boys from my Mohalla had informed me that I should go to Hotel Jabees where I will get employment. I went to Hotel Jabees. I waited outside room 417 where one Aftab Ahmed was staying. The watchman did not allow me to enter in the room. Meanwhile police arrived there and they arrested 2/3 persons including myself and I was taken to police station." However, the learned trial Judge did not accept the defence plea and convicted the appellant for offence under Article 4 of the Order and sentenced him for the same as mentioned hereinabove. Hence this appeal.

5. Kh. Naveed Ahmad, Advocate, appeared for the appellant and Mr. Abdul Ghafoor Mangi with Mr. Habib-ur-Rashid, Advocate, appeared for the State.

6. In support of the appeal the learned counsel for the appellant has taken following grounds:-- (i) Quality of evidence is not sufficient to warrant conviction. (ii) The witnesses are not from public, hence no reliance can be placed on their evidence. (iii) The recovery witness Habib Ahmad hails from Landhi and not from the place of occurrence. (iv) It is case of substitution. A rich man Aftab Ahmad has been set free and poor person has been involved falsely.

7. The learned counsel for the State vehemently controverted the contentions raised by the learned counsel for the appellant and submitted that witness Habib Ahmad is a public man, who has supported the prosecution and the version of P.W.2 M.Z. Soarwardi. 1Jence the conviction of the appellant be maintained. However, he submitted that a lenient view may be taken regarding his sentence.

8. It may be pertinent to observe that on spy information the raid on the appellant was arranged by P.W.2 M.Z. Soharwardi, Assistant Excise and Taxation Officer. He collected witnesses Habib Ahmad and Khalil Ahmad, private persons, for acting as recovery witnesses. P.W.1 Habib Ahmad has been examined, who has fully supported the prosecution case in the words as under:-- "On 21-4-1990, at about 1-55 p.m. I was standing at Natha Khan Goth Bus Stop, Excise Police van arrived there. A person was also standing at the bus stop. He was holding a bag in his hand, the Excise Official introduced himself to that` person and then asked his name. He disclosed his name as Muhammad Saleem son of Muhammad Amin. The name of the Excise Official was Mr. Soharwardi. He took that bag from Muhammad Saleem and also searched his person, but nothing was recovered from his search, then Mr. Soharwardi opened the bag, there were five cloth bags in that large bag. Those small bags were opened by Mr. Soharwardi in my presence and there was heroin powder in all those five bags. Mr. Soharwardi checked/examined this powder on the spot, then he took out 10 grams powder from each of the bags and then weighed five bags. The total weight was 5 kilograms, one kilogram in each one of the bags. He placed all the samples in one bag and then the same were packed and sealed on the spot. The remaining powder was sealed in each of the bags and those bags were placed in the large bag and that bag was also sealed. My signature was obtained on the sealed bag. I produce the Mashirnama as Exh.6, and say that it is the same, correct and bears my signature. It was prepared on the spot by Mr. Soharwardi. I see the samples and the remaining packets they are the same. The property available in the Court is the same Articles `A' to `J'. I was examined by the police. The accused present in Court is the same:' However, in cross-examination question regarding National Identity Card was put to him by the defence counsel. He explained that it was lost. No other material was adduced from his cross-examination to dislodge his positive evidence against the appellant.

9. It was contended by the learned counsel appellant actually P.W.1 Habib Ahmad is also a person from Excise Department but was concealing his identity by not producing the identity card. This argument of the learned counsel for the appellant is based on hypothesis. No weight can be given to such argument based on such mere assertion. P.W.1 Habib Ahmad was standing at Natha Khan Goth Bus Stop at the relevant time. As such his explanation is sufficient for his being present at the place of incident.

10. We have gone through the evidence of P.W.2 M.Z. Soharwardi. Nothing was also taken out from his evidence m cross-examination to uproot his positive evidence of recovery against the appellant. The defence has not suggested any motive against witnesses Habib Ahmad and M.Z. Soharwardi for falsely implicating the appellant. We do not agree with the learned counsel for the appellant that the quality of the evidence is not sufficient to warrant conviction.

11. The phenomenon of substitution has not been approved by the Superior Courts of this country. It cannot be believed that real culprit was let off by the Excise Police and an innocent person has been implicated. Particularly, when no animosity has been shown by the defence against Excise Police. This ground also does not come to the rescue of the appellant.

12. We have gone through the judgment passed by the learned trial Judge. He has elaborately assessed the prosecution evidence and found it sufficient to award conviction. The defence witness Races Ahmad has said nothing regarding the incident. He has only said that the appellant bears good moral character. It has no relevancy with the case. No case has been made out, calling for interference by this Court in appeal, which is as such dismissed accordingly. However, the learned counsel for the appellant has pressed that the sentence be reduced as at the time of incident the appellant was a few months above 16 E years of age. The age by itself is not a mitigating circumstance for reduction of the sentence. We as such are not inclined to reduce the sentence. The conviction and sentence awarded to the appellant by the learned trial Judge are maintained. N.H.Q./707/FSC Appeal dismissed.