2012 PLP 1276 (SCMR)

TARIQ PARVEZ, J.

This appeal by leave of the Court is directed against the order dated 20-11-2008 passed by learned High Court of Balochistan, Quetta whereby Criminal Appeal No.(s)3 of 2008 filed by the appellant Shah Muhammad has been dismissed.

2. Facts in brief, leading to filing of this appeal are that an F.I.R. No.63 of 2007 was registered on the report of Khawand Bakhsh Khosa, IP/SHO in the terms that he was on patrol duty of the area along with two police personnel when he signaled a 2.D car to stop. The driver instead of stopping the car accelerated the same towards Jaccobabad; after the hot pursuit the car was intercepted at Sam Shakh near the border of Sindh and Balochistan. On enquiry, the driver disclosed his name as Shah Muhammad (appellant). The car was checked and during the search 340 kilograms of baked charas was recovered from dikky in 17 sacks each containing 20 packets weighing 1 kilogram each. Accordingly accused-appellant Shah Muhammad was apprehended at the spot and a case under section 9(c) of the Control of Narcotic Substances Act, 1997 was registered against him.

3. After completion of usual investigation the appellant was sent up to face trial before the Special Judge (CNS), Dera Allah Yar. The prosecution in order to substantiate accusation against the appellant produced three witnesses. Statement of the appellant was also recorded under section 342, Cr.P.C. wherein he categorically denied the prosecution case. However, he did not opt to examine himself under section 340(2), Cr.P.C. but produced one Ahmed Hussain, ASI, Police Station, Qambar, Sindh to disprove the allegations levelled against him. On conclusion of the trial the learned trial Court found him guilty under section 9(c) of the Act and sentenced him to imprisonment for life with direction to pay fine of Rs.10,000 or in default whereof to suffer S.I. for six months. He was however, extended the benefit of section 382-B, Cr.P.C.

4. Feeling aggrieved from his conviction/sentence, the appellant preferred Criminal Appeal before the learned High Court of Balochistan, Quetta which has been dismissed by means of impugned judgment; hence this appeal by leave of the Court.

5. Learned counsel for the appellant made following submissions:-- (i) that the occurrence took place on 29-3-2007 when the alleged recovery was effected, whereas according to the report from the Forensic Science Laboratory, Quetta Exp/I-B the samples were received for analysis on 12-5-2007 and on the same day report was prepared but was dispatched to the Investigating Agency on 13-6-2007. His submission was that the delay in sending the samples of charas would not only reflect on dishonest investigation but possibility cannot be ruled out that samples were tampered with. (ii) that under section 35 of the Control of Narcotic Substances Act, 1997 Syed Abdul Jabbar was not a notified analyst, therefore, report of the Chemical Examiner has to be excluded from consideration. (iii) that the evidence of the prosecution is inconsistent rather contradictory because according to Khawand Bakhsh Khosa (P.W.1) the recovered charas was lying in the dikky of the car in 17 bags and each bag contained 20 packets making the total of 340 packets and from each packet 10 grams of charas was separated for dispatch to the Forensic Science Laboratory for examination, whereas the statement of Muhammad Essa (P.W.2) who is witness to the recovery memo, 10 grams of charas sample each has been taken out from each bag and not packet. (iv) that in this case the appellant has produced evidence in defence when Ahmed Hussain, ASI from Police Station, Qambar, Sindh who appeared as D.W.1 who has arrested the appellant on 29-3-2007 at 10-30 a.m. as a suspect and released him on the same day at 7.30 p.m. whereas according to the prosecution case accused-appellant was arrested in this case on 29-3-2007 at 6-30 p.m. His submission is that this will clearly show that the appellant has been falsely involved in this case. (v) that in view of full Bench judgment reported as Ameer Zeb v. The State (PLD 2012 SC 380), even if it is conceded that the appellant was in drug trafficking but because samples are not taken from 340 packets but only from 17 bags and the received samples were totally weighing 170 grams, therefore, the report of the Chemical Examiner should be taken to the extent of 170 grams, taking the case of the appellant within the scope of section 9(b), C.N.S.A. His last submission was an alternative defence to the quantum of sentence.

6. Learned Additional Prosecutor-General, Balochistan has appeared for the State. He supported the judgment of conviction and argued that huge quantity of charas weighing 8-1/2 maund was recovered from the vehicle driven by the appellant and that he is singly charged without any evidence of ill will or enmity between the police officials and the appellant.

7. We have heard learned counsel for the appellant and have also taken into consideration the evidence available on record. As far taking out of evidence the report of the Chemical Examiner on the ground that the Chemical Examiner was not notified by name, learned counsel for the appellant was confronted with section 510 of the Cr.P.C. where under if any proceedings are carried out under the Code, the report of Chemical Examiner can be taken into evidence without he being summoned. Since, this case was a police case and the challan was filed by the police, therefore, it was the Provincial Government who were to nominate and notify Syed Abdul Jabbar as Chemical Expert which was so done on 17th July, 1999 vide notification issued by the Government of Balochistan which has been placed on record by the learned counsel for the appellant himself. Since the proceedings before the Special Judge Narcotics are conducted under the Cr.P.C., therefore, notification issued in favour of Syed Abdul Jabbar by the Provincial Government would make him competent to prepare the report.

8. Regarding delay in dispatch of samples to the Forensic Laboratory for examination, suffice it to say that we have to realize the ground realities of less means of communication and manpower with the police and over and above the absence of any evidence to presume that because of delay, dispatch samples were tempered with, therefore, this argument would not be available to the learned counsel for the appellant. His submissions that two witnesses are contradicting each other because according to Khawand Bakhsh Khosa 10 grams each samples taken from each packet whereas according to Muhammad Essa the samples were taken from each bag; reply is simple that according to the F.I.R. prepared by Khawand Bakhsh Khosa and according to recovery memo prepared by him, it was recorded that from each bag 10 grams each was separated for sample; if a police official in two official documents has recorded a fact and if he deviate from such fact by making a contrary statement when he is making statement orally, possibility cannot be overruled that he was either mistaken or has forgotten the fact recorded by him in two earlier documents or is making concessional statement. Reverting to the argument that reliable defence evidence was produced showing the arrest of the appellant on 29-3-2007 at 10-30 a.m. and his release at 7-30 p.m. the document produced before the learned trial Court was taken notice of because the trial Court has observed that the page containing arrest and release was somewhat differently inserted with rest of the pages which will create doubt in defence version.

9. As far reliance placed by the learned counsel for the appellant on the judgment of Ameer Zeb (supra), we find that the facts of this case are distinguishable in as much that in the instant case appellant has consistently denied the factum of recovery of any narcotics from him whereas there is sufficient ocular account of two witnesses that in their presence and from possession of the appellant huge quantity of charas was recovered weighing 8-1/2 mound. In this case both the witnesses have categorically stated that 10 grams each were taken out from each bundle making the total of 170 grams which were dispatched for analysis to the Chemical Laboratory, the report whereof is positive. Whether 10 grams sample each was taken from 17 bags or 17 packets at least one fact is common, between the two witnesses that 17 samples were taken from 17 bags/packets, making total of 170 grams for comparison. Each bag/packet if taken to be of one kilogram then the minimum quantity regarding which it is proved that taken samples there from were weighing 17 kilograms. If this is the case of the appellant, even then his case still remain within the scope of section 9(c), C.N.S.A.

10. In view of the above discussion we hold that the appeal in hand is devoid of any merits as such the same is dismissed. M.W.A./S-16/SC Appeal dismissed.