1993 P Cr (PLP)

As per note, sample packet was unsealed in the Court and the witness I see, it is the same, which I had sent to the Chemical Examiner and produce the same as Article `A'. In cross-examination the witness further stated that-- "I handed over samples and heroin to the I.O. of this case Ghulam Samdani, Inspector. The witness further stated that-- "It is correct to say that just after lodging F.I.R. of this case I handed over investigation to Inspector Ghulam Samdani." The witness also stated, that Murtaza was the Head Moharrir of the Police Station Gulzar-e-Hijri, at the time of incident. Inspector Ghulam Samdani, P.W.3 (Exh_11) was also examined as a witness and in his examination-in-chief, on the point, at issue, he stated as under:-- "I sent heroin sample for examination to Chemical Examiner." He further stated in the cross-examination that The case-property was handed over to Head Moharrir on the day of its recovery for safe custody and also for sending the position (sic) perhaps, powder) seized as sample for chemical analysation. The witness, however, did not remember the name of Head Moharrir to whom the case-property was entrusted for sending the same to the Chemical Examiner. He, however, stated that-- "The case-property was handed over to him alongwith seizure memo., as the requisite (sic) from the concerned D.S.P. was then to be obtained. I do not remember the date on which permission was obtained as it was solely gole (sic) of the Head Moharrir." He further stated that at the time when challan was submitted, the samples were sent to the Chemical Examiner.

10. It appears that P.W.1 Dawood Akbar, brought the case-property and handed over the same to Inspector Ghulam Samdani P.W.3, who, in turn, passed on the same to the Head Moharrir, Murtaza, for safe custody. The learned counsel stressed that Murtaza, Head Moharrir, having not been examined, it cannot be ascertained as to the lodging of the case-property and remaining the same in his custody. 11. 1 have carefully looked into the report of the Chemical Examiner Exh.9 and find that full details of the case property have been mentioned in the said report, particularly, the seals were also stated to be `perfect'. It is also noticeable that the witnesses, particularly, P.W.1 and P.W.3 were cross examined at great length, but not a single question was put to any witness as to the tampering with the sample. Tampering with the sample; having not been challenged at the trial stage, the objection as such, has no force. In such circumstances, mere delay in sending the case property will not, by itself, vitiate the trial. In any case, as stated by P.W.3, the requisite permission from the concerned D.S.P. was to be obtained. In view of the above, the delay in sending the sample has been explained.

12. The case (1992 M L D 349), cited by the learned counsel, is distinguishable inasmuch as in the cited case there was nothing to show as to the custody of parcel during the period in question was not known and the record of the trial Court was silent about it, whereas in the instant case, the S.H.O., P.W.3 has nowhere stated that he did not know where the samples and case property were kept. On the other hand, he was categorical in his statement that he handed over the case property to Head Moharrir on the day of its recovery for safe custody and also for sending the samples for chemical examination.

13. It may be added that in order to obviate any doubt and to do justice in the case, the case property was produced by the Police Constable of P.S. Gulzar-e-Hijri, as directed by this Court telephonically. Messrs Nuruddin Sarki and Muhammad Saleh G. Memon, were asked if they wanted to make any objection/submission about the same but both of them stated before me that "they have nothing to say about the case property." As such, the case property was returned intact. Thus no tampering was alleged before me by the learned counsel even at the appellate stage.

14. In result, the appeal is without any merit. The judgment impugned in appeal is well-reasoned. The appeal merits dismissal.

15. As regards the other appeal, bearing No.43/K of 1992, Mr. Muhammad Saleh G. Memon, learned counsel for the appellant, Zafarullah, submitted that the appellant as alleged, had made his escape good coming out of the car on 4-7-1986 and was apprehended by Khairpur Police on 9-11-1986. He was not known to the police party and as such identification test in connection with the appellant was necessary. Reliance was placed by him on Alim v. The State P L D 1967 SC

307. In that case the witnesses had only a fleeting look at the assailant and had picked out the assailant at the identification parade. The Court observed that there was a clear ~ possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier. It was thus observed that: Under such circumstances the sole reason for the conflicting statements by the witnesses could be that they felt unable to make themselves responsible for conviction of accused. In other words, even if their identification of accused at the identification tests was bona fide, at the trial they were not able to say with certainty that he was the murderer. The question of reasonable doubt must be approached in such case from a wider examination of the circumstances of observation, and a closer consideration of the possible influences working on the minds of the witnesses, and it is unsafe to place full reliance only on the Committing Court statements of the eye witnesses, on the point of identification.

16. The facts of the present case are somewhat not similar. The appellant Zafarullah was already known to P.W.1 Dawood Akbar, the A.S.I.P. at Gulzar e-Hijri Police Station Karachi East. He being on patrolling duty had come across the incident. This was so stated by P.W.3 Ghulam Samdani, the then S.H.O. of the Police Station Gulzar-e-Hijri. Furthermore, P.W.1 Dawood Akbar (Exh.6) has stated -in his cross-examination that accused Zafarullah tried to run away from the car after getting down from the back side of the car of left door'. P.W.3 Ghulam Samdani (Exh.ll) stated in his cross-examination that `there was no suspicion about Zafarullah's identity. As such, it was not mentioned by the complainant in F.I.R.

17. Reading the evidence of the above-said two witnesses together it seems that since the accused Zafarullah was fully seen by both the witnesses, their identification test was not necessary. Both the witnesses are consistent about the presence and identity of the accused Zafarullah. Reliance may, however, be placed on Muhammad Bashir Alim v. The State P L D 1988 SC

1. It may further be added that in the cited case, it appears that the witnesses were not of one voice as to the identity of the murderers. The cited case is, therefore, distinguishable.

18. Mr. Memon, then submitted that the heroin powder alleged to have been recovered was not weighed. It appears that each Theli appears to have been estimated of one kilogram weight. The total weight of ten 1helis was, therefore, estimated to be ten kilograms. No question was put to the witness in the cross-examination that the said heroin powder was not ten kilograms. However, the case property was produced before me but the learned counsel did not request for weighment of the said lhelis. As such the point looses all force.

19. The learned counsel lastly submitted that it has not been shown in the evidence that the other co-accused Muhammad Saleh, the driver has any connection with Zafarullah, the co-appellant. As the presence of Zafarullah stood proved in the car which was being driven by Saleh and the recovery of heroin was made from the said car, the burden was on the appellant Zafarullah to show that he had no connection with the driver or the heroin. The only plea which was taken by Zafarullah in his defence was that the driver Saleh had taken his name and involved him due to enmity, between him and the said Saleh. The plea of this motive, having been taken, has not been proved at all and the appellant Zafarullah has failed completely to prove it. As such, his false implication by the Driver Saleh, as alleged has no base.

20. I have perused the entire evidence with the learned counsel and have read the judgment with their assistance. I have no doubt in my mind that appellant Saleh as well as appellant Zafarullah have rightly been convicted of the offence. The judgment gives cogent reasons for coming to the conclusion about the presence of both the appellants in the car and recovery of the heroin powder. I am, however, of the view that conviction under Articles 3 and 4 both cannot be sustained. Since the recovery of the heroin powder-was made while the same was being transported from Sohrab Goth to some other destination, on Super Highway, the appellants are convicted under Article 3 of the said Order only.

21. As regards the sentence, Criminal Suo Motu Nos.14/K and 16/K were issued to the appellants. In view of the huge quantity of the heroin powder, I recovered in the case, the sentence is enhanced to fife imprisonment.

22. In result, both the appeals stand dismissed with the modification of the sentence enhanced, as aforesaid.

23. Before parting with the case, it may be added that Toyota Corrola Car No.640-(148, which has been used for transporting the heroin from Sohrab Goth Karachi, be produced in the Court of IInd Additional Sessions Judge, Karachi East, to be dealt with according to the provisions of the Prohibition (Enforcement of Hadd) Order, 1979, under intimation to this Court. N.H.Q./747/FSC Order accordingly.