2016 PLP 1081 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Both above named appellants booked in Crime, FIR No.37/2006, under Section 9/C, CNS Act, 1997, registered at P.S. F.B. Area, Karachi, were convicted and sentenced to suffer imprisonment for life and fine of Rs. 25,000/- each and in default to suffer S.I. for three months more. The judgment dated 05.12.2009 was handed down by the learned Judge Special Court-II, CNS Karachi. The aforesaid judgment assailed by filing separate captioned appeals through concerned Superintendent, Central Prison, Karachi, and the Appellants have prayed for their acquittal by claiming their innocence and false implication by the concerned police. Appellant Jameel Ahmed has also filed an application for condonation of delay of approximately 255 days in filing the Appeal, as well. Since, both the appeals have been directed against the common judgment, hence taken together.

2. On completion of usual investigation the appellants were charge sheeted by the concerned police. Copies under section 265-C, Cr.P.C. were supplied to them and then charge was framed, to which both accused did not plead guilty and claimed to be tried. To substantiate its case, prosecution examined PW1 SI Ashfaque Hussain, who prepared the memo of recovery, arrest and recorded his statement under Section 154, Cr.P.C; he also produced the entry dated 21.05.2006 recorded in the daily diary. PW2 PC Mir Hassan produced the FIR and PW3 Investigation Officer of the case DSP CID Sardar Nooruddin in his deposition produced the report of chemical examiner and thereafter prosecution closed its side. In defence, both appellants neither examined themselves on oath, as provided under Section 340(2), Cr.P.C. or to adduce defense evidence, however they claimed their innocence in their statements recorded under Section 342, Cr.P.C.

3. Story of the prosecution case as narrated by PW1/Complainant SI Ashfaque Hussain Balouch, in the memo of recovery and in his statement recorded under Section 154, Cr.P.C. is that in between the night of 20th May and 21st May, 2006, at 02:00 hours, he received a spy information that narcotics smugglers are on the way to Karachi, through superhighway in white colour Toyota Corolla bearing registration No. U-6600 and on such information, he proceeded along with police party and reached at the main Superhighway, where he signaled and stopped the car; three persons were found in the vehicle, two were males and one was lady. Both males were apprehended but the lady, whose name was later on disclosed as Maryam, made her escape good in darkness; that due to non-availability of private persons, the car was searched in presence of police witnesses, 43 packets of Heroine, each packet weighing one Kg, 20 packets of Opium, out of them 2 packets weighing 2 Kgs each, 2 packets weighing 1.500 Kgs each and remaining 16 packets of one Kg each from the secret cavities made under the driving seat and seat beside the driver seat was found. Out of so recovered contraband, 10 grams from every Heroine packet and 10 grams from every Opium packet were taken out for sending the same to the Chemical Examiner and sealed separately and remain case property was also sealed at the spot. Then the complainant recorded his statement under Section 154, Cr.P.C, which was later on incorporated in a book under section 154, Cr.P.C. Memo of recovery and arrest was prepared at the spot. Apprehended accused Jameel disclosed that the recovered narcotics was of one Abdul Qudoos son of Syed Ahmed Brohi and prior to this incident, his cousin Abdul Manan had supplied the narcotics through Mst. Maryam. It may be advantageous to reproduce hereinbelow the description and quantity of seized/recovered narcotics as mentioned in the memo of seizure and arrest (Exh-8/A):-- Serial No. Brand Number of Packets Weight of per Packet

01. Green Packet 337 9 Packets 1 Kilogram

02. Blue White Theli No 7-do- -do- 03. 870 Muhammad Wali 3 -do-

04. Syed Ahmed 2002/1322 Stamp 2 -do-

05. Syed Ahmed 2002 Jalalabad 2 -do-

06. Paktia 2007 Hilmand Karwan 5-do- -do-

07. Ajab Gul Barkat 610 2-do- -do-

08. Syed Shafiq Stamp Brand 26th October, 2005 2-do- -do-

09. Stamp Brand 337 Super Brand 2-do- -do-

10. Sada Gul Shafiq Brand 2-do- -do-

11. Stamp Green Brand Karwan 2003 2-do- -do-

12. N Brand 712-999 1-do- -do- 13. 999/097 Blue Stamp Shafiq 1-do- -do-

14. Anwar 1-do- -do-

15. Asif Blue Stamp Shafiq 1-do- -do-

16. Hikmat Stamp Black 1-do- -do- Total Recovered Heroin 43 Packets 1 Kilogram per Packet Total Weight For Chemical Analysis Remaining Weight 9 Kilogram 10 grams 8.910 Kilogram 7-do- 10 gram 6.930 Kilogram 3-do- 10 gram 2.970 Kilogram 2 Kilogram 10 gram 1.980 Kilogram 2 Kilogram 10 gram 1.980 Kilogram 5 Kilogram 10 gram 4.950 Kilogram 2-do- 10 gram 1.980 Kilogram 2-do- 10 gram 1.980 Kilogram 2-do- 10 gram 1.980 Kilogram 2-do- 10 gram 1.980 Kilogram 2-do- 10 gram 1.980 Kilogram 1-do- 10 gram 0.990 Kilogram 1-do- 10 gram 0.990 Kilogram 1-do- 10 gram 0.990 Kilogram 1-do- 10 gram 0.990 Kilogram 1-do- 10 gram 0.990 Kilogram 43 Kilograms 430 grams for sample 42.570 Kilograms On all the recovered opium bags Maroon Colour's tape is wrapped detail of different brand is as follows:-- Serial No. Brand Total Packets Weight of each packet

01. White Brand only tape is wrapped 2 Packets 2 Kilogram

02. Barkat Ali 2-do- 1.500 Kilogram

03. Saifullah 1 Packet 1 Kilogram

04. Ismail 3 Packets 1 Kilogram

05. Anwar 04 Packets 1 Kilogram

06. Muhammad Khan 2 Packets 1 Kilogram 07. 0100 3 Packets 1 Kilogram

08. N Brand 1 Packet 1 Kilogram

09. Unbranded 2 Packets 1 Kilogram Total recovered opium 20 Packets different Total weight Sample for Chemical examiner analysis each 10 gram Remaining weight 4 Kilo 20 gram 3.980 Kilogram 3 Kilo 20 gram 2.980 1 Kilogram 10 gram 0.990 Kilogram 3 Kilogram 10 gram 2.970 Kilogram 4 Kilogram 40 gram 3.960 Kilogram 2 Kilogram 20 gram 1.980 Kilogram 3 Kilogram 30 gram 2.970 1 Kilogram 10 gram 0.990 Kilogram 2 Kilograms 20 gram 2.800 Kilogram 23 Kilograms 200 gram 22.800 Kilogram From the recovered case property heroin and opium, from each packet 10/10 gram Heroin and opium was taken out separately, sealed at the spot for Chemical examination, total 43 samples of 10/10 gram heroin and from each packet of total 20 numbers, packets of Opium 10/10 gram Opium for Chemical examination i.e. 20 numbers of samples were sealed at the spot while all the 43 packets of heroin each packet 990 gram total weight 42.570 Kg Heroin separately 23 packets in one bag while 20 packets of Heroin in another bag were sealed. The recovered opium total 20 packets except samples remaining weighing 22.800 Kg was sealed in a separate bag at the spot while aforesaid car under Section 550, Cr.P.C. due to non-availability of proof consider-ing as theft property and using in case property was taken into police possession. The aforesaid accused persons were duly arrested in offence under Section 6/9-C, N.C.A. and conducted personal search of aforesaid accused persons then from accused Jameel Ahmed son of Abdul Ghani PKR 4700/- cash and one Mobile phone makers SAMSUNG 480 was recovered while from personal search of accused Yar Muhammad son of Taj Muhammad sum of Rupee Rs. 60/- were recovered. The aforesaid arrested accused persons disclosed the name of their fled away lead as Mariam wife of not known. Memo was prepared at the spot, read over to witnesses, who admit-ing it to be correct signed thereon".

4. Arguments advanced by learned Counsel for the appellants and learned prosecutor appeared for the states are considered and record has also been scanned with their able assistance.

5. Prosecution witnesses in their depositions have fully implicated the appellants in commission of the offence charged with and categorically stated that the appellants were apprehended while possessing the contraband narcotics i.e. 43 Kgs of Heroine and 23 Kgs of Opium, mentioned above, available in the secret cavities of the car. Though the appellants have claimed their false implication in the case but they have failed to show any enmity of the prosecution witnesses with them, therefore, in view of such facts and circumstances, learned prosecutor contends that a huge quantity of Heroine and Opium may not be foisted upon the appellant and recovered narcotics could not have been planted by the raiding party due to unknown ulterior motives. More-so, the evidence available on record of the case do not show material contradictions among the depositions of examined prosecution witnesses those were cross-examined at considerable length but the defence could not succeed to shatter their evidence/ examination-in-chief. Admittedly, section 25 of CNS Act, 1997, excludes the provision of Section 103, in the mentioned facts and circumstances of the case and the evidence of the police officials recorded on oath is as good as any other private person, therefore, the same cannot be discarded.

6. Perusal of record shows that the memo of recovery and the statement recorded under Section 161, Cr.P.C. stands fully corroborated and resultantly proved to the satisfaction of the trial Court. No defence evidence at all has been adduced and the appellants have also refused to record their statements on oath as provided under Section 340(2), Cr.P.C., hence mere assertion of their false implication without any animosity with the raiding party is having no substantial value. In peculiar facts and circumstances of the case, we have no hesitation to say that the prosecution has succeeded to discharge the burden on its part and conversely the appellants have failed to rebut the same evidence as required under Section 29 of the CNS Act, 1997, to establish their innocence.

7. After arguing the matter at some considerable length, learned Counsel for the appellants submitted that the appellants are not previously convicted in any case and as per jail roll, both the appellants have already served the sentence of 20 years and 8 months and unexpired portion of their sentence of 4 years and 06 months is a very short period, more particularly, the jail roll shows their satisfactory conduct, therefore, the learned counsel have prayed for leniency by reduction the awarded sentence to the appellants.

8. Conversely, learned Prosecutor supported the above judgment and submitted that the captioned appeals are liable to be dismissed.

9. During worthy arguments, the judgment delivered in the case of Amir Zeb v. The State (PLD 2012 SC 380) has been iterated as the said judgment was later on followed by the Superior Courts. It shall be advantageous to reproduce hereinbelow, the penultimate paragraph of the said judgment:- "In the case in hand 80 cakes/ slabs contained in 20 packets kept in 22 baskets had allegedly been recovered from the Appellant's possession but according to the prosecution only a "small" and unspecific quantity was taken from every packet as a sample and then those samples were mixed up and made into one sample of 10 grams which was thereafter sent to the Chemical Examiner for analysis. If 80 cakes/slabs had statedly been recovered from the appellant's possession and the total weight of the entire quantity was 20 Kilograms then, in all likelihood, each cake/slab weighed about 250 grams. As only one sample of 10 grams had been sent to the Chemical Examiner for analysis and the report in this regard had been received in the positive, therefore, for safe administration of justice it may be concluded that the appellant was liable to be held responsible for having only one cake/slab of charas weighing 250 grams in his possession which offence attracts the provisions of Section 9(b) of the Control of Narcotic Substances Act, 1997. In this view of the matter, this appeal is partly allowed, the conviction of the appellant recorded and upheld by the learned Courts below for an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 is converted into one under Section 9(b) of the said Act and applying the sentencing policy of the Lahore High Court, Lahore laid down in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), the appellant is sentenced to rigorous imprisonment for one year and three months and to pay a fine of Rs. 9,000/- (Rupees Nine Thousand only) or in default of payment thereof to undergo simple imprisonment for three months and fifteen days. The benefit under Section 382-B, Cr.P.C. shall be extended to him. This appeal is disposed of in these terms".

10. In reported case of Fareedullh v. The State 2013 SCMR 302, from 24 Kgs of recovered charas in shape of 20 littars, one consolidated sample of recovery was taken, therefore, the recovery of contraband narcotics was considered 1.2 Kg. In this reported case Hon'ble Apex Court, by maintaining the conviction, reduced the sentence into 4 years and 6 months and fine of Rs. 20,000/- each with benefit of Section 382-B, Cr.P.C. In the case of Shoukat Ali @ Billa reported as 2015 SCMR 308, the accused was allegedly found in possession of 20 bags containing narcotics, each bag contained 20 packets and each packet weighed one Kg; one gram narcotic was separated from each packet and 10 sealed parcel of 20 grams each were prepared as sample for chemical examination, hence keeping in view of the judgment of Amir Zeb v. The State, recovery was considered to be 10 kgs as 10 packets of 20/20 grams were prepared as sample, hence the death sentence awarded to accused by the trial Court was converted into already undergone i.e. 14 years in jail, which include the sentence awarded to him in case of non-payment of fine with benefit of Section 382-B, Cr.P.C. In Nasreen Bibi's case (2014 SCMR 1603), the sentence of imprisonment of life awarded to her by the trial Court for possessing 40 Kg narcotics (Poast) upheld by the Lahore High Court, was reduced by the Apex Court to that already undergone by her, mainly on the ground that only one consolidated sample was taken from four packets, thus one bag could be said to have contained 10 kg of narcotics, which could be considered against the accused for the purpose of her conviction and sentence.

11. Suffice it to say that the evidence led by the prosecution is without any material variation or lapses; the memo of recovery and the FIR aforesaid stand fully corroborated and resultantly proved to the satisfaction of the trial Court; the defence is depended upon mere denial of the charge and case as well as evidence; no defence evidence at all has been adduced; the initial burden resting on the prosecution stand discharged on its part and the appellants/ accused have failed to rebut the same as provided under Section 29 of CNS Act, 1997 and to lead defence evidence establishing their innocence in the matter. The defence Counsel while placing reliance on the afore-cited rulings prayed for mercy in the matter of punishment on the ground that they are first offender and bread earner members of their families may be dealt with lenient view, more particularly, they have served major portion of their sentence.

12. Resultantly, captioned appeals are dismissed. Since the appellants have already served major portion of sentence i.e. more than 20 years and 08 months as per jail roll, dated 11.11.2015, so in aforesaid reasons/discussions, while maintaining the conviction, we reduce the sentence to the appellants to one already undergone. They shall be released forthwith in this case.

13. Captioned appeals are decided in the manner indicted above. MH/Y-7/Sindh Order accordingly.