2013 PLP 2051 (YLR)

AFTAB AHMED GORAR, J.

The appellant was tried by the learned Special Judge C.N.S Jamshoro and was convicted under section 9(c) of Control of Narcotic Substances Act, 1997 to suffer imprisonment for life and to pay fine of Rs.100,000, in default whereof, to suffer imprisonment for one year. He was given benefit of section 382-B Cr.P.C.

2. Brief facts of the prosecution case are that on 15-10-2008 Excise Police parts/ headed by EI Saleemullah arrested the appellant on spy information, at Jamshoro Railway crossing when he alighted from the Bus bearing No.JB-2358 New Blue Line and also recovered 24 Kilograms of charas in shape of rods and patties respectively lying in the bag. 24 samples were taken out from all the packets and were sent for chemical examination while remaining charas was sealed at the spot. The complainant, therefore, brought the appellant and case property at Police Station and lodged F.I.R.

3. Formal charge was framed against the appellant at Exh.2, to which he did not plead guilty and claimed his trial.

4. In order to prove its case, prosecution examined in all two witnesses i.e. P.W.1 complainant EI Saleemullah at Exh.6. He produced mashrnama of arrest and recovery at Exh.7, attested copies of departure and arrival entries at Exh.8, F.I.R. at Exh.9 and report of Chemical Examiner at Exh.

10. P.W. 2 Mashir Allah Bachayo was examined at Exh.11 and then closed its side vide statement at Exh.12.

5. The statement of accused was recorded under section 342, Cr.P.C. wherein he denied the prosecution allegations and pleaded his innocence. However, neither he examined himself on oath nor led any defence evidence.

6. The learned trial court after hearing the parties and appraising the evidence convicted the appellant as mentioned above.

7. Learned counsel for the appellant argued that the appellant is innocent and falsely implicated in the present case. He submitted that there are glaring contradictions in the evidence of both the witnesses. He submitted that the complainant in his evidence deposed that only the appellant alighted from the Bus when it stopped at Jamshoro Railway crossing, whom they apprehended along with plastic bag while mashir stated that about 15 persons alighted from the Bus and some of them were holding plastic bags. The complainant deposed in his cross-examination that the informer also disclosed the features and description of the accused but he did not mention the same in the F.I.R. or mashirnama. The complainant deposed in his cross-examination that he had received the spy information while mashir deposed that spy information was received by Javed Karim Mahar. Learned counsel submitted that in view of the above contradictions, the case has become highly doubtful and as per settled principle of law, benefit of doubt goes in favour of accused. Learned counsel, therefore, prayed for acquittal of the appellant.

8. On the other hand, learned Deputy Prosecutor-General Sindh supported the impugned Judgment and argued that prosecution has proved its case against the appellant beyond shadow of doubt, therefore, impugned conviction does not suffer from any illegality or infirmity and the appeal merits no consideration.

9. We have heard the learned counsel for the parties and examined the record carefully. The prosecution witnesses i.e. the complainant and mashir of the arrest and recovery have deposed on oath that on the day of incident, on receipt of spy information regarding transportation of narcotic substance by the appellant in the Bus, they went to Jamshoro Railway crossing. They further deposed that when the Coach stopped at the Jamshoro Phatak, the person with same features as were pointed out by the informer, alighted, who took the plastic bag in order to hire some Rickshaw, however, they apprehended him and recovered charas from his possession. The record further reveals that incident took place on 15-10-2008, samples were sent on 16-10-2008 and received by the Chemical Examiner on 17-10-2008. The report of the Chemical Examiner is in positive confirming the substance taken from each rod/pati recovered from the appellant to be the Charas. Though both the P.Ws were put to the test of lengthy cross-examination but their testimony in connection with the date of incident, quantity of charas and the place of incident could not be shattered. So far the contradictions pointed out by the learned counsel for the appellant are concerned, same are minor in nature and would not be fatal to the prosecution case. The appellant was apprehended while holding the plastic bag containing the contraband charas intending thereby to transport it to another place. In this scenario there appears no reason or ground to show that the appellant was not in knowledge of the substance lying in his bag on the contrary it has been proved that he was taking away the contraband with a pre-planning. The prosecution also proved departure and arrival of the complainant party by producing entries. The appellant also failed to show any enmity or ill-will against the complainant and mashir to depose against him falsely. It is also not easily possible to foist such a huge quantity of contraband charas upon the appellant. In our opinion, the learned trial court did not commit any illegality while awarding sentence to the appellant, against whom there was sufficient evidence to prove charge under section 9(c) of C.N.S Act, 1997.

10. For the foregoing reasons, we are of the considered view that there is no ground to interfere in the impugned Judgment of the learned trial court and the appeal merits no consideration, which stands dismissed. HBT/M-62/K Appeal dismissed.