PLJ 2024 Cr.C. (Note) 164
[Lahore High Court, Lahore]
Present: Miss Aalia Neelum and Raja Shahid Mehmood Abbasi, JJ.
versus
STATE etc.--Respondents
Crl. A. No. 581-J of 2014, heard on 25.10.2017.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Recovery of charas--No infirmity in impugned judgment to extent off conviction of appellants, as awarded by trial Court and as such Court find no ground or justification to warrant interference in same--Consequently, Court is are inclined to maintain conviction as recorded by trial Court--However, nevertheless, complainant (PW-6) had not made separate samples from all packets and pieces respectively, whereas one sample was taken from each tora of recovered Charus and from shopper bag of opium--The complainant (PW-6) had taken one sample from each “tora” and “tora” consists upon packets weighing different weight and opium was in shape of pieces--The recovered Charas allegedly weighing hundred kilograms was in two “toras” and each “tora” was consisting of packets and opium was in shape of pieces but after recovery, one sample from each “tora” and from shopper bag sample of 10-grams were separated and three (03) sealed parcels were received in Office of Chemical Examiner, Punjab, Lahore--The two reports of Chemical Examiner, Punjab, Lahore were regarding Charas and one report of Chemical Examiner, Punjab Lahore was regardin “Opium”, thus, only twenty grams of Charas and ten grams of opium of recovered substance could be considered against appellants schedule provided in Ghulam Murtaza’s case PLD 2009 Lahore 362 reflects that imprisonment of six months upon recovery of Charas up 30 grams along with fine of Rs. 3000/- and in default simple imprisonment for two (2) months has been provided--Whereas upon recovery of opium upto 30 grams imprisonment of five months along with fine of Rs. 2000/- and in default simple imprisonment for one (1) month and fifteen (15) days has been provided--In these circumstances, in view of contention raised by defence counsel for appellants, in interest of justice and for safe administration of justice, sentence already undergone by appellants would be adequate--Court while dismissing appeal, modify sentence of imprisonment passed against appellants by trial Court is reduced to that already undergone by them--For quantity of contraband Charas upto 30 grams its imprisonment of six months along with fine of Rs. 3000/- and in default simple imprisonment for two (2) months, whereas, for opium upto 30--Grams it imprisonment of five months along with fine of Rs. 2000/- and in default simple imprisonment for one (01) month and fifteen (15) days--As appellants had already served out many folded imprisonment, therefore, Court have felt persuaded to set aside their sentence of fine so as to meet ends of justice and it is ordered accordingly--Appeal dismissed.
[Para 11, 18, 21, 22, 23, 24 & 25] A, B, C, D, E, F & G
PLD 2012 SC 380, PLD 2009 Lahore 362 and 2013 SCMR 302.
Ch. Muhammad Naseer Kamboh, (defence counsel) for Appellants.
Mr. Hamayoun Aslam, DPG for State.
Date of hearing: 25.10.2017.
Judgment
Miss Aalia Neelum, J.--Appellants-Riasat Ali son of Liaqat Ali and Mst. Kousar widow of Liaqat Ali, both Muslim Sheikh by caste, residents of Momanpura, Bhutta No. 11, near Kot Abdul Malak, District Sheikhupura, were involved in case F.I.R No. 300 of 2011, dated 27.06.2011, offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997, registered at Police Station Dinga, District Gujrat and were tried by the learned Additional Sessions Judge / Special Judge Control of Narcotics Substances Act, Kharian District Gujrat. The learned trial Court seized with the matter in terms of judgment dated 21.11.2014, convicted the appellants under Section 9 (c) of the Control of Narcotic Substances Act, 1997 and sentenced them to imprisonment for life with the direction to pay Rs. 100,000/- as fine each and in case of default in payment thereof, each shall further undergo rigorous imprisonment and simple imprisonment for (01-year respectively. The benefit of Section 382- B, Cr.P.C. was also extended in favour of the appellants. Feeling aggrieved, the appellants have assailed their conviction through filing the instant appeal.
2. The prosecution story we alleged in the F.LR (Ex.PA) lodged on the complaint (Ex.PA/1) of Muhammad Sharif SI, (PW-6) is that on 27.06.2011. he along with Muhammad Asif ASI (given up PW) Muhammad Afzal A.S.1 (PW-4), Waqas Ahmed 53/C, Zamurd Ali 3905/C, Tasawar Hussain 2411/C, Ali Ahmad 3304/C and Sharjeel Javaid 3615/C was present at Chak Jani Kalan on patrolling, when he (PW-6) received spy information that Riasat Ali (the Appellant No. 1) along with his mother Mst. Kausar (the Appellant No. 2) while Boarding on green coloured car bearing registration No. LOW-3742 Suzuki Margalla are coming from Mardan towards Dinga City through Kharian Mandi road having huge quantity of Charas and Opium for selling the same and if a picket is established at proper place, huge quantity of contraband could be recovered. On receiving such information, a picket was established in the area of village Bakananwala. After some time, a car came from Kharian side in slow speed. The driver of Car while seeing the police party, turned the car towards Bakananwala village, who was intercepted and Riasat Ali (the Appellant No. 1) and Mst. Kausar (the Appellant No. 2) were apprehended. On search of Car, two sacks (toras) containing Charas were recovered from inside the car and one shopper containing “Opium” was recovered from “Dashboard” of the car. On weighing the recovered two sacks (toras) of “Charas” (P-1/1-2), it was found 100-kilograms, which was taken into possession vide recovery memo. Ex.P.B. Whereas on weighing the recovered “Opium” (P-2), it was found 1½ kilogram, which was taken into possession vide recovery memo. Ex.P.C. On interrogation from the appellants, they could not produce any license or permit for keeping with them the said contraband/narcotics. On physical search of Riasat Ali (the Appellant No. 1), sale proceed amounting to Rs. 40,000/- and two mobile phones were recovered, which were taken into possession vide recovery memo. Ex.PD&Ex.PE respectively. Out of the recovered “Charas”, 10-grams Charas from each sack (tora) was separated for Chemical Analysis, whereas out of recovered “Opium”, 10-gram Opium was separated for Chemical Analysis. The complainant (PW-6) drafted complaint (Ex.PA/1) and sent the same to police station through Waqas Ahmed 53/C (PW-3) for registration of formal FIR (Ex.PA).
3. Thereafter, the investigation was entrusted to Muhammad Nawaz S.I, (PW-5), who being investigating officer of the case prepared the site plan (Ex.PG) of the place of recovery, recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. and also sent the appellants to judicial lock up by the order of the learned Area Magistrate. Having found the accused guilty, the Investigating Officer (PW-5) prepared report under Section 173, Cr.P.C., while placing their names in Column No. 3 of the challan and sent the same to the Court of competent jurisdiction.
4. The learned trial Court formally charge sheeted the appellants on 13.09.2011, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as six witnesses. Zahoor Ahmad A.S.I (PW-1) chalked out formal FIR (Ex.PA). Faisal Mehmood Bokan 1335/HC (PW-3) is Moharrar. Muhammad Afzal A.S.I, (PW-4) is witness of recovery, whereas Muhammad Nawaz, S.I (PW-5) is the investigating officer of the case and Muhammad Sharif Ex- Sub-Inspector, (PW-6) is the complainant of the case.
5. On 21.12.2013, the learned DDPP has given up PW-Asif A.S.I being un-necessary and on 05.05.2014 after tendering the reports of Chemical Examiner (Ex.PH&Ex.PJ) regarding Charas and report of Chemical Examiner (Ex.PK) regarding opium closed the prosecution evidence.
6. The appellants were also examined under Section 342, Cr.P.C. wherein they neither opted to appear as their own witness in terms of Section 340(2), Cr.P.C. nor opted to produce defence evidence and while replying to a particular question that why PWs have deposed against them, the appellants-Riasat Ali and Mst. Kousar made the following deposition:
“I have given my version as mentioned in question No. 2 and moreover, all the PWs are police officials and with connivance with each other they deposed against me falsely.”
7. After hearing the arguments advanced by the learned counsel for the appellants as well as the learned DDPP, the learned trial Court while evaluating the evidence available on record, found the version of the prosecution as correct beyond any shadow of doubt, which resulted in conviction of the appellants in the above stated terms.
8. At the very outset, learned counsel for the appellants has opted not to object conviction of the appellants. However, he prayed for reduction in their sentence mainly on the touchstone of dictum of law laid down by the August Supreme Court of Pakistan in the ease of “Ameer Zeb vs. The State” (PLD 2012 Supreme Court 380).
9. On the other hand, learned Deputy Prosecutor General has opposed the contention raised on behalf of the appellants and stated that in view of the quantity of recovered narcotic substance, the learned trial Court has rightly convicted the appellants.
10. We have heard the arguments advanced by the learned counsel for the appellants as well as the learned Deputy Prosecutor General for State and have minutely perused the record available on the file.
11. As the learned counsel for the appellants has not opted to assail conviction recorded by the learned trial Court against the appellants, therefore, we do not feel it necessary to discuss in detail the prosecution evidence on the record. However, we find that in view of recovery of narcotic substance fully substantiated by Muhammad Afzal, ASI (PW-4), and Muhammad Sharif, S.I. (PW-6)-the complainant, the positive reports of Chemical Examiner, Lahore (Ex.PH, Ex PJ and Ex.PK) with regard to samples sent for chemical analysis, particularly the fact that the complainant and other officials had no previous ill will to falsely involve the appellants in the instant case, we have been persuaded to hold that the appellants were rightly convicted and sentenced by the learned trial Court. We, thus, see no infirmity in the impugned judgment to the extent of conviction of the appellants, as awarded by the learned trial Court and as such we find no ground or justification to warrant interference in the same. Consequently, we are inclined to maintain the conviction as recorded by the learned trial Court.
12. However, as regards the question of sentence awarded by the learned trial Court to the appellants, we have carefully gone through the record available on the file, from which it reveals that Muhammad Sharif, S.I. (PW-6)-the complainant deposed during examination-in-chief that after arrest of the accused, from inside the car two (2) “toras” of Charas weighing hundred (100) kilograms and from dash board one packet of opium weighing one and half kilograms were recovered. He (PW-6) separated ten grams Charas from each tora of Charas and ten grams opium from shopper bag of opium and made it into sealed parcels for its onward transmission to the office of Chemical Examiner, Punjab, Lahore. Muhammad Sharif, S.I. (PW-6)-the complainant deposed during examination-in-chief:
“From each bag of charas 10 grams of samples of Charas were separately sealed into parcels, 10-grams of opium as sample of Charas was taken and made into a sealed parcel.”
13. Muhammad Sharif, S.I. (PW-6)-the complainant also deposed during cross examination:
“I have separated 10 gm from each bag and not from each packet.”
14. Muhammad Afzal, ASI (PW-4) deposed during examination-in- chief that:
“Muhammad Sharif S.I separated 10 gm of Charas for sample from each bags of charas and made them into sealed parcels and took into possession recovered charas P1/1 to 2 along with its samples vide recovery memo. Ex. PB. Muhammad Sharif S.I separated 10 gm of opium for sample purpose and took into possession opium P2 while making it into a sealed parcel along with sealed sample vide recovery memo. Ex.PC.”
15. Faisal Mehmood Bokan, 1335/H.C. (PW-3) deposed during cross- examination that:
“All the three parcels were of 10 grams each”
16. Therefore, the reports of Chemical Examiner, Lahore (Ex.PH. Ex. PJ and Ex.PK) corroborated the testimony of prosecution witnesses i.e. PW-3, PW-4 and PW-6, which reveals that three sealed packets weighing 10 grams each of Charas and opium were received in the Office of Chemical Examiner, Punjab, Lahore on 01-07-2011. Admittedly from each “tora” and shopper bag ten (10) grams of charas and opium were separated as sample. Whereas, Muhammad Afzal, ASI (PW-4), deposed during cross-examination that,
“We have not counted the slabs of Charas. In one slab there was nearly one Kg Charas. The said slabs of Charas were of different weight. That was a meager difference. I could not state that how many slabs were in one bag. Similar is the case with the other bag of Charas, I could not mention that how many slabs are in total lying in two bags, I even cannot approximately tell the number of slabs whether they are one hundred, two hundred or three hundred in quantity.” Also deposed “The opium was of different pieces. I could not tell the exact number of pieces.”
17. Muhammad Sharif, S.I. (PW-6)-the complainant, deposed during cross-examination that:
“I do not remember the number of packets lying in each bag of the contraband. Every packet was containing one slab of contraband. It is correct that I have not weighted each and every packet rather weighted whole of the bag having packets. We have weighted both the bags separately, each bag have weighted nearly 50-kg of contraband ---- I cannot tell the number of packets of contraband in each of the bag.”
18. However, nevertheless, the complainant (PW-6) had not made separate samples from all packets and pieces respectively, whereas one sample was taken from each tora of recovered Charas and from shopper bag of opium. The complainant (PW-6) had taken one sample from each “tora” and “tora” consists upon packets weighing different weight and opium was in shape of pieces, whereas in the dictum of law laid down by the August Supreme Court of Pakistan in a reported case titled as “Ameer Zeb v. The State” (PLD 2012 Supreme Court 380) wherein it was observed as under:
“that if no sample is taken from any particular packet/slab or if different samples were taken from different packets/slabs and not kept separately for their analysis by the Chemical Examiner, then the sample would not he a representative sample.”
19. It was also observed by their Lordship of the August Supreme Court of Pakistan in Ameer Zeb’s case which read as under:
“that is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.”
20. It is also held by their Lordships of the August Supremes Court of Pakistan in the case reported as Mst. Nasreen Bibi v. The State (2014 SCMR 1603) that:
“---- In the case in hand only one consolidated sample of five hundred grams had been secured and tested and. Thus, only one bag out of the four bags recovered could be counted towards the appellant’s guilt. If four bags contained forty kilograms of poast then one bag could be said to have contained ten kilograms of poast and it is only that quantity which could be considered against the appellant for the purposes of her conviction and sentence ....”
21. In the instant case, the recovered Charas allegedly weighing hundred kilograms was in two “toras” and each “tora” was consisting of packets and opium was in the shape of pieces but after the recovery, one sample from each “tora” and from shopper bag sample of 10-grams were separated and three (03) sealed parcels were received in the Office of Chemical Examiner, Punjab, Lahore. The two reports of Chemical Examiner, Punjab, Lahore (Ex.PH and Ex.PJ) were regarding Charas and one report of Chemical Examiner, Punjab Lahore (Ex.PK) was regarding “Opium”, thus, only twenty grams of Charas and ten grams of opium out of recovered substance could be considered against the appellants. The schedule provided in Ghulam Murtaza’s case (PLD 2009 Lahore 362) reflects that imprisonment of six months upon recovery of Charas up to 30 grams along with fine of Rs. 3000/- and in default simple imprisonment for two (2) months has been provided. Whereas upon recovery of opium upto 30 grams imprisonment of five months along with fine of Rs. 2000/- and in default simple imprisonment for one (1) month and fifteen (15) days has been provided. The above said sentencing policy formulated by this Court in Ghulam Murtaza’s case (PLD 2009 Lahore 362) was also subsequently approved by the August Supreme Court in the case of “Amir Zaib vs. The State” (PLD 2012 SC 380) and in case of “Fareed Ullah vs. State” (2013 SCMR 302).
22. In these circumstances, we have arrived at the conclusion that in view of the contention raised by the learned defence counsel for the appellants, in the interest of justice and for the safe administration of justice, the sentence already undergone by the appellants would be adequate.
23. For what has been discussed above. We while dismissing the appeal, modify the sentence of imprisonment passed against the appellants by the learned trial Court is reduced to that already undergone by them.
24. For the quantity of contraband Charas upto 30 grams its imprisonment of six months along with fine of Rs. 3000/- and in default simple imprisonment for two (2) months, whereas, for opium upto 30 grams it imprisonment of five months along with fine of
Rs. 2000/- and in default simple imprisonment for one (01) month and fifteen (15) days. As the appellants had already served out many folded imprisonment, therefore, we have felt persuaded to set aside their sentence of fine so as to meet the ends of justice and it is ordered accordingly.
25. Consequently, the instant Appeal bearing No. 581-J of 2014 filed by Riasat Ali and Mst. Kousar, the appellants is dismissed with the modification that sentence of appellants is reduced to that already undergone by the appellant. The appellants-Riasat Ali and Mst. Kousar are directed to be released forthwith, if not required in any other case.
(A.A.K.) Appeal dismissed
0 Comments