2011 PLP 268 (YLR)

SYED HASAN AZHAR RIZVI, J.

The present appeal is directed against the judgment dated 18-5-2009 passed by the Judge of Special Court-I, Control of Narcotic Substances, Karachi in Special Case No.37 of 2006 (The State v. Dost Muhammad son of Bakhshallah), by which the learned Judge had convicted the appellant under sections 6/9-C of C.N.S. Act, 1997 (hereinafter referred to as Act, 1997) and sentenced him to suffer' R.I. for life imprisonment and fine of Rs.100,000 and in default of payment of fine he will suffer further' R.I. for six months, with benefit of section 382-B, Cr.P.C.

2. Brief facts giving rise to the present appeal are that on 21-4-2006 Jawed Iqbal Inspector/S.H.O. of Police Station ANF, Clifton. Karachi was on patrolling duty along with his subordinate staff, when they reached at Mecca Hotel, near Kathoor Bridge, Super Highway, Karachi at about 8-00 A.M., Spy informer intimated him that Narcotic Dealer, Dost Muhammad will bring narcotics on his motorcycle. On receipt of that secret information they started nakabandi near Quetta Gulistan Hotel, Super Highway, Karachi. At about 8-30 A.M. they saw one person was coming, while riding on black motorcycle. On pointation of the Spy, they got stopped him. On inquiry the said person disclosed his name as Dost Muhammad son of Bakhshullah, by caste Kalmati Baloch, resident of Haji Ibrahim Goth, Malir, Karachi. One sack bag was lying on the motorcycle of the above-named person, they checked the same and found 58 bags of dark blue colour packets, foil packing inside. The ANF .party tried their best to make a public person as witness, but nobody was available over there, therefore, PC Muhammad Nasir and PC Shahid Raza were made as masheers from the raiding party. On opening of each bag they found 04 parties/rods of Charas wrapped in white shopper having marka in the name and style of "JAMILA 2004" with golden colour were recovered. Each packet was found weighing one kilogram, total weight of the recovered Charas was 58 kilogram. Ten (10) grams Charas from each bag was separated for chemical examiner in plastic bag and khaki envelope and sealed up by allotting Serial Nos.1 to 58, whereas remaining case property of 58 bags of Charas was also sealed up and allotted Serial Nos. 1 to

58. Case property Charas and samples were signed by witnesses. Upon conducting physical search of the accused Dost Muhammad his CNIC, cash amounting to Rs.1700 (three notes of Rs.500 and two notes of Rs.100) from right side pocket of his wearing Kameez, while from left side pocket one Nokia Mobile phone and one phone diary were recovered. The motorcycle recovered from the accused Dost Muhammad had no number plate, however it was of Star Company, the accused did not give satisfactory explanation regarding non-availability of registration plate of motorcycle. However, the Engine No.33368815 and Chasis No.DSP-35658 were noted by the ANF team and mentioned in the F.I.R. The accused was arrested, the memo. of seizure of Charas, physical search, recovery of motorcycle and arrest of accused was prepared on the spot. The accused and case property were brought to ANF Police Station where the case was registered against the appellant/accused, the samples drawn from each bags were sent to the Chemical Examiner, the report of the Chemical Examiner was received in positive. After completion of the investigation Challan was submitted in CNS Court.

3. On 12th January, 2008, Charge under section 9-C, CNS Act, 1997 was framed against the appellant/accused who pleaded not guilty.

4. In support of the case, the prosecution examined the following two witnesses:

S.No. P.W. Name of Summary of No. Witness Evidence 1. PW.1 Jawed Iqbal He supported the I.O./S.H.O. case, implicated Police the appellant, Station produced the case ANF, property, Chemical Clifton, Examiner's report Karachi which shows that 58 sealed parcels were received by the Chemical Examiner, each weighing 10 grams net. Report is in positive. All the contents in the 58 samples parcels were consumed in analysis by the Chemical Examiner. He produced the documents of seized motorcycle vide Seizure Memo. Exh.-6/B showing that subject motorcycle was purchased by the appellant/accused on instalments from Syed Brothers. He himself prepared hulia form of accused Dost Muhammad. He prepared sketch of place "occurrence on the spot" 2. P.W. P.C. Masheer of 2 Muhammad Seizure, physical Nasir Search and arrest of accused, who produced the case property as Exh.7/A before the Court. He stated that Inspector Jawed Iqbal himself prepared Masheernama and had supported and corroborated the evidence of the complainant/I.O. already recorded before the CNS Court. 5. The appellant in his statement recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. He claimed to be innocent and falsely involved in the case by the ANF officials who had foisted the recovery upon him. He denied the recovery and possession of Charas. The appellant refused to examine himself on oath or led any evidence in his defence. 6. After considering the material available on record, the learned trial Judge convicted the appellant, as mentioned above, under the impugned judgment. 7. Learned counsel for the appellant contended that P.W. 1 Inspector Jawed Iqbal has played three roles in the matter in hand i.e. of Seizing Officer, Complainant and Investigating Officer, therefore, he is highly interested witness and any investigation by the complainant himself is against the norms of justice. He further argued that P.C. Muhammad Nasir, P.W.2 was working as the subordinate to the complainant, therefore, his evidence cannot be relied upon being interested witness. It is further submitted by the learned counsel for the appellant that according to the prosecution witnesses that they signed all the samples on the spot but the report of Chemical Examiner negates such fact. According to the learned counsel for the appellant to resolve such fact, the prosecution has failed to produce wrappers of samples before the learned trial Judge, therefore, the credibility of the report of Chemical Examiner has become doubtful. 8. It was next contended by the appellant's counsel that the prosecution has failed to associate any person from public witness to act as masheer of recovery and or search. It was also argued by the appellant's counsel that common sense would not accept the fact that the appellant was going to Noori Abad along with huge quantity of charas kept on the rear seat of his motorcycle having no number plate and without driving license on the Super Highway. It was further contended that the evidence produced by the prosecution was not only inconsistent, conflicting and contradictory, but also untrustworthy and false, hence the prosecution has miserably failed to establish any case against the appellant and the conviction awarded by the learned trial Court was not sustainable in law and is liable to be set aside. 9. The learned counsel for the appellant has also argued that the case property was not produced before the trial Court by the P.W. Inspector/Investigating Officer Jawed Iqbal and the learned counsel for the appellant further drawn our attention to the cross-examination of the P. W. 1 wherein it was stated that Chemical Report mentions signature of P.C. Nisar (instead of Nasir) and Shahid Raza. The learned counsel for the appellant has referred to (1) 2003 SBLR Sindh 1082, (2) 2004 MLD 542, (3) 2008 YLR 985 and (4) 2007 YLR Karachi 3087. 10. It was contended by the learned counsel for the appellant that during the trial the appellant has suffered from diabetes and as a result of gangrene his right leg was amputated. The appellant was produced in custody at the time of hearing and was walking through crutches with right leg amputated. 11. On the other hand Mr. Syed Hussain Rizvi, learned Prosecutor, ANF has argued that the complainant as well as the Masheer examined before CNS Court has fully supported the prosecution case and proved the charge against the accused beyond any shadow of doubt. The complainant, Inspector Jawed Iqbal and Masheer P.C. Muhammad Nasir both have supported the prosecution case and have deposed that on the day of occurrence the ANF team was on patrolling when arrived at Mecca Hotel near Kathoor Bridge, Super Highway, Karachi, they were informed by Spy informer about carrying of narcotics by the appellant Dost Muhammad on his motorcycle. On receipt of this secret information they started nakabandi, on pointation of Spy they saw accused Dost Muhammad on his motorcycle and got him apprehended, one sack bag was kept on his motorcycle, on checking they found 58 packets of' Charas, each of one kilogram, the word "JAMILA 2004" marka in golden colour were printed on each packet. Samples of 10 grams from each packet were taken separately and ' had given number from 1 to 58 on samples and so also the recovered bags. All samples were packed and sealed, remaining packets were also packed and sealed on the spot and Masheers have put their signatures thereon. The motorcycle of the appellant was without number plate. The appellant was arrested on the spot. The recovered Charas, motorcycle were taken into custody and brought at ANF Police Station. The complainant registered the case against the appellant, samples were sent to the Chemical Examiner on the next day i.e. 12-4-2006, the Chemical Examiner's Report received was in positive. During the interrogation the accused disclosed that the motorcycle was purchased by him from Syed Brothers on instalments and produced the documents as Exhs. 7/E-1 to 7/E-3. The case property was produced before the Court, both the PWs have identified the accused and produced the case property before the CNS Court. Both the prosecution witnesses have corroborated to each other in all respect, their evidence found consisting regarding time, date, place of occurrence, nature of quantity of recovered substance, mode and manner in which it had been affected. The prosecution witnesses were cross-examined at length by the defence counsel, but their evidence stood un-shattered in all respects. No significant lacuna and/or discrepancies have been surfaced in the evidence of prosecution witnesses. No enmity has been alleged on the prosecution witnesses for false implication of the appellant. Learned Special Prosecutor ANF submits that the complainant as well as Masheer are officials of ANF and their evidence cannot be discarded merely on the ground that they are employees of ANF until and unless ulterior motives or hostility is established. He has relied upon (1) 2008 PCr.LJ 146, (2) 2006 YLR 378, (3) 2007 PCr.LJ. 269, (4) 2005 MLD 1949, (5) 2003 SCMR 1237, (6) 2007 PCr.LJ 1237 and (7) 2007 PCr.LJ 1515. 12. We have heard the learned Counsel for the Appellant, the learned Special Public Prosecutor, ANF and have perused the record. The contention of the learned Counsel for the appellant in regard to the three roles of P.W. Inspector Jawed Iqbal i.e. of Complainant, Investigating Officer and Seizing Officer is fully answered by section 28 of CNS Act, 1997, which provides that the Federal Government may invest any officer of law enforcement agency or any other officer within their respective jurisdiction with powers of an officer-in-charge of a Police Station for the investigation of an offence under this Act. Hence there is no bar in law, which restricts him from acting as Complainant, Investigating Officer and Seizing Officer. 13. The contention in regard to non-associating any public witness at the time of recovery, it has already come on record that nobody was available at the spot at the time of arrest and recovery from the appellant and therefore, the complainant/ I.O. made the Masheers from the members of the raiding party. Moreover, section 25 of the CNS Act, 1997, excludes the application of section 103, Cr.P.C. and, therefore, the contention of the learned Counsel for the appellant is without substance. 14. The samples of 10 grams each were taken from the case property and were allotted Serials Nos.1 to 58. These samples were sealed in presence of the mashirs who have signed on the sealing paper. The Chemical Examiner has found these samples as Charas and mentioned in his report that during the chemical test the samples were consumed. The contention of the learned Counsel for the appellant that the samples were not returned from the Chemical Examiner and the wrappers are not available has no significance. Once it has been mentioned in the Chemical Examiner's Report that the samples were consumed during test, the wrappers containing the samples, being empty, were not required to be sent back by the Chemical Examiner. 15. The contention of the learned Counsel for the appellant in regard to non-production of the case property in the trial Court by the I.O. was also misconceived. On 18-4-2009 during the examination-in- chief I.O. Jawed Iqbal stated before the Court in his evidence that "accused Dost Muhammad, case property, personal search and motorcycle parked in the Court premises are same." Moreover, P.W.-2 Muhammad Nasir in his examination-in- chief before the trial Court stated that "accused, case property, personal search and motorcycle parked within the Court building are same. I produce the case property as Exh-7/A". The contention of the learned counsel for the appellant that the name of P.W.2 Nasir, which was wrongly typed as `Nisar' in the deposition of P. W .1, was a typographical error. The Investigating Officer Jawed Iqbal in his cross-examination has clarified it. 16. The presence of the appellant on motorcycle along with sack of 58 bags, each containing one kilogram of Charas, and apprehension by the ANF officials has not been denied specifically by the appellant. The appellant in his statement under section 342, Cr.P.C. has stated that the recovered Charas was not his property and has been foisted upon him by the police. The case-law cited by the appellant's counsel is distinguishable on facts and circumstances of present case. 17. For the foregoing reasons, the prosecution has proved the guilt of the appellant beyond reasonable doubt and has successfully discharged its burden through consistent and confidence inspiring evidence. 18. We do not find any illegality or infirmity in the impugned judgment warranting interference of this Court in Appeal. The appellant has no case on merits, but looking at his ailment and his physical condition that he is diabetic, which resulted in amputation of his right leg, we, while dismissing the appeal, reduce his quantum of sentence from life imprisonment and fine to that of 20 years imprisonment. These are the reasons of the short order dated 15-9-2010 by which the appeal was dismissed. M.H./D-10/K Order accordingly.