2017 PLP 406 (YLRN)

AHMED ALI M. SHAIKH, J.

Appellant Shah Jee Khan was tried by learned Special Judge-II, (CNS), Karachi for the offence under Section 9-C of CNS Act, 1997 and vide impugned judgment dated 17-10-2011 he was convicted and sentenced to suffer imprisonment for life and fine of Rs.1,000,000/- and in lieu of payment of fine to suffer RI for five years more. However, benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Brief facts of the case are that 19.5.2008 a police party headed by SIP Ejaz Hussain left police station for patrolling and reached Shah Abdul Latif Bhitai Road near Kamela Bus Stop where at 12.35 PM police saw four persons alighted from a taxi. Police signaled them to stop but three culprits ran away in nearby streets while one person having black bag was apprehended. On inquiry the arrested culprit disclosed his name as Shah Jee son of Khan Gul while police recovered 25 sleepers, each containing one 01 KG charas, from the bag and drawn samples of ten/ten grams from each sleeper and sealed the same at the spot for chemical analysis.

3. At the trial formal charge was framed against the appellant and co-accused Yousuf Khan to which they pleaded not guilty and claimed trial. Prosecution in support of its case examined PW-1 Complainant SIP Ejaz Hussain, exhibit 5, who produced departure roznamcha entry as exhibit 5/A, memo of arrest and recovery as exhibit 5/B, roznamcha entry of arrival as exhibit 5/C and FIR exhibit 5/D. Prosecution then examined PW-2 HC Ayoub Khan, as exhibit 6, one of mashirs of arrest and seizure of narcotics, who produced memo of arrest of Yousuf Khan as Exhibit 6/A; and PW-3 I.O. SIP Muhammad Saleem Khan, exhibit 7, who produced roznamcha entries of departure and arrival as exhibit 7/A and 7/B, letter by which samples were deposited with the chemical examiner as exhibit 7/C, report of chemical examiner as exhibit 7/D and road certificate as exhibit 7/E. Thereafter the prosecution closed its side vide Exhibit 8 whereafter statement of appellant under section 342, Cr.P.C. was recorded in which he denied the prosecution story and claimed innocence. However, the appellant did not opt to examine himself on oath under section 340(2), Cr.P.C. The trial Court after hearing the arguments of both sides and examining the record passed the impugned Judgment.

4. Mr. Abbas Rasheed Rizvi, Advocate has contended that appellant is innocent and has been made scapegoat by the police to show their so called efficiency; that the incident has taken place at a thickly populated area and in day light but the police has failed to associate any person of the locality to act as mashir; that allegation against the appellant is that he along with other co-accused alighted from a taxi and on signaled to stop, three accused made their escape good while appellant was arrested but police did not examine the taxi driver; that evidence of PW-1 and 2 suffers from contradiction and do not inspire confidence and no conviction can be based on such inconsistent evidence; that allegedly 25 sleepers weighing 01 KG each was recovered from the bag and police separated 10/10 grams of charas from each sleeper but sent all the samples in one parcel; that police at the spot drawn samples but sent the same to chemical examiner after a delay of 7/8 days and the prosecution did not produce any evidence as to the safe custody of the contraband material, therefore, possibility of tampering of recovered items cannot be ruled out; and alternatively he contended that sentence of the appellant be reduced on humanitarian ground as he is first offender and victim of circumstances.

5. Conversely, Mr. Ali Hyder Saleem, APG though supported the impugned Judgment could not controvert the above submissions advanced at the bar by Mr. Rizvi.

6. We have heard the learned counsel for the appellant, APG and perused the record. No doubt police has failed to associate any independent person of the vicinity as mashir and violated section 103 Cr.P.C. but section 25 of the CNS Act provides complete reply of the same. Prosecution in all examined three witnesses. PW-1 complainant SIP Ejaz Hussain and PW-2 Muhammad Ayoub, mashir of arrest and seizure of charas in their cross-examination have admitted that it was not specifically mentioned in the memo of arrest and seizure Exhibit 5/B, that the case property was weighed at the spot. Both the prosecution witnesses also admitted that the black colour hand carry bag was not sealed.

7. Apart from above, learned counsel for the appellant while arguing the matter alternatively prayed that case of the appellant be considered on humanitarian ground as well. The appellant is a poor convict, preferred appeal through jail. Besides, he is first offender having no previous history of being involved in such like cases and perhaps a victim of circumstances. As per the jail roll dated 24.11.2015 submitted by the Senior Superintendent, Central Prison, Karachi, the appellant has served out a sentence of 19 (nineteen) years, 05 (five) months and 27 (twenty-seven) days, including remissions. Accordingly, we are of the view that ends of justice have met and while maintaining the impugned conviction reduce his sentence from life imprisonment to that already undergone by him. With above modification in the impugned sentence, we dismiss the instant appeal. Aforesaid are the reasons of our short order dated 16.12.2015. JK/S-93/Sindh Appeal dismissed.