MUHAMMAD ISMAIL Versus State
1. TUFAIL H. EBRAHIM, J .---Through the present appeal, the appellant Muhammad Ismail Khan' has assailed the judgment dated 21-5-2010 passed by the learned Sessions/Special Judge (CNS) Sukkur in Special Case No.61 of 2009 whereby the appellant was convicted for offence under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer R.I for seven years and to pay fine of Rs.150,000 and in default thereof to suffer imprisonment for one year more. The appellant has also been extended the benefit of section 382-B, Cr.P.C.
2. Precisely the case of prosecution case as culminated from F.I.R. Crime No.3 of 2009 registered at Excise Police Station, Sukkur, is that Excise Inspector Nihal Khan Shar apprehended the accused with one black coloured bag containing eight patties of garda charas cumulatively weighing 8 kgs. at Garang-wah on Shikarpur-Sukkur road while he was travelling in a bus along with cash Rs.500 and NIC. It is said that 100 grams from each of the above 8 patties of charas were taken as samples which were sealed separately from the remainder and the accused who disclosed his identity as Muhammad Ismail, was arrested under mashirnama attested by EC Nadeem Ahmed and EC Qasim Ali. He was then brought to Excise Police Station where the case was registered against him on behalf of the State.
3. After registration of F.I.R., the investigation was conducted by Inspector Nihal Khan. The statements of witnesses were recorded and sent the samples to the Chemical Examiner Rohri on the following day of the recovery and on receiving the report in positive, submitted the challan against the appellant before the court having jurisdiction to stand trial.
4. The trial Court framed the charge against the appellant, to which he pleaded not guilty and claimed to be tried.
5. The prosecution in order to prov e its case, examined before the trial court P.W.1 mashir EC Nadeem Ahmed who produced mashirnama of arrest/recovery; P.W.2 complainant Excise Inspector Nihal Khan Shar, who produced extract of entries from roznamcha and copy of the F.I.R. and P.W.3 EC Hubdar Ali and then prosecution closed its side.
6. The learned trial court recorded the statement of appellant under section 342, Cr.P.C. who denied the case of prosecution and claimed innocence but did not examine himself on oath or produced any witness in defence.
7. The learned trial court after framing the points for determination and hearing the arguments of State and defence counsel convicted and sentenced the appellant by the impugned judgment referred to above. Hence the appellant preferred the present appeal before this Court:--
8. The learned counsel for the appellant has contended that there is contradiction in the statements of prosecution witnesses, as to which officials had entered the bus, whether the bus was air-conditioned or not, how many passengers were in the bus, whether any shops and hotel were located nearby at the place of incident and whether any private persons were asked to act as masheers. The learned counsel further argued that it was not mentioned by Hubdar Ali P.W.3 that he had prepared the mashirnama. It was also vehemently argued that the case property comprising 7.2 kgs of garda charas which was sealed at the time of arrest was not de-sealed at the time of trial or shown to the witnesses and therefore sentence of the appellant is to the extent of quantity which was segregated and sent to the chemical examiner. Per learned counsel the alleged garda charas was recovered from the appellant, however from the evidence of the prosecution witnesses it has been shown that .8 patties of charas were recovered. Learned counsel has further argued that the complainant has acted as I.O. which is not permissible under the law. Learned counsel has also argued that the sentenced should be reduced as the appellant is a young man and has no past criminal record whatsoever. The learned counsel of the appellant in support of his case .as relied on the following cases; (1) 2002 MLD 1293; (2) PLD 2001 Karachi 639(b), (3) 2009 PCr.LJ. 1334, 2009 PCr.LJ 355, 2007 SCMR 206 and he also relied upon three unreported cases viz. Criminal Jail Appeal No.D-107 of 2009 Re Abdul Azeem v. The State (2) Criminal Appeal No.D-58/2008 Re-Rab Nawaz v. The State and (3) Criminal Appeal No. D-108 of 2009 Riaz Ahmed v. The State.
9. The learned A.P.-G. argued that there are only minor contradictions in the statements of prosecution witnesses and there is no material contradiction which could cause any doubt as to the guilt of the appellant. Per learned A.P. -G. the appellant has not denied that the seized goods from the appellant were not in the nature of any contraband and only disputed that the material was garda charas whereas recovered charas was in the shape of eight pattis. According to the learned A.P.-G. garda charas is only impure form of charas and can also be in the form of patties and comes with the definition of section 9(c) of C.N.S. Act, 1997. According to learned A.P.-G. garda charas was in hard condition and one piece from each patty was taken and sent for chemical examination, which report has come in positive. No irregularity or illegality was committed by the Excise Police at the time of weighing, separation and sealing of the said charas at the time of arrest. Per learned A.P.-G. the appellant has failed to point out any animosity or ill will of the police against the appellant to falsely implicate the appellant and to foist 8 Kgs garda charas upon the appellant. Per learned A.P.-G. as there is no dispute as to who had prepared the memo of arrest and no question was asked to the prosecution witnesses in this regard. Even the author of memo of arrest was produced and examined but no suggestion was made in the cross examination that P.W.3 Hubdar Ali had not prepared memo of arrest. Learned A.P.-G. has argued that desealing of the bag containing the charas was not required as the suggestion was made by the counsel for the appellant at the time of cross- examination that the bag did not contain the charas recovered from the appellant. The learned A.P.-G. in support of his contentions has relied on the following cases:--
(1) ? Zafar v. The State 2008 SCMR . 1254 (Supreme Court of Pakistan)
(2) ? Khawar and another v. The State (2003 PCr.LJ 811 Karachi).
(3) ? Muhammad Mushtaque and another v. The State (2008 SCMR 742 (Supreme Court of Pakistan)
10. We have considered the arguments of the learned counsel of the appellant as well as the learned A.P.-G. and have perused the record and the cases referred by both the counsel.
11. It is admitted position that the remaining charas weighing 7.2 Kgs was sealed at the time of arrest and was duly produced, in Court but was not de-sealed during trial and was not shown to witnesses; but no suggestion was made by the counsel during cross examination that it was not the same bag or that the bag did not contain the recovered charas. There was no evidence that the bag was not sealed and there were no signatures of the Excise Inspector and the masheers. It is our view that in such circumstances the non sealing of the bag at the time of trial would not rule out the recovery of the 8 Kgs Charas from the appellant at the time of his arrest from our consideration and sentence of the appellant be restricted only to the charas sent to the chemical examiner. In the case of Muhammad Mushtaq and another v. State (supra) it was held by the apex court as under:--
12. "So far as the objection of learned counsel for the petitioners that the case property, the remaining narcotics material i.e. Charas and opium was not produced in the Court, the accused-petitioners had not challenged the nature of recovery substances being "Charas and "Opium" before the trial Court or the High Court. They cannot now turn around that the recovered material which was not produced at the time of trial of the case in the Court was other than the narcotics. The prosecution witnesses when examined at the trial were not even suggested by the petitioners to produce remaining case property in the Court. It was neither objected nor prayed before the Court that entire case property may be sent to the Chemical examiner for report to challenge that it was not the narcotics substance. The objection cannot be raised now at this stage before this Court."
13. The contradiction of the witnesses as to which officials had entered the bus, whether the bus was air-conditioned or not, how many passengers were in the bus, whether any shops and hotel were located nearby at the place of incident and whether any passengers were asked to act as masheers are immaterial contradictions. We are of the view that there was no material contradiction in the evidence of the witnesses and no doubt is created from the said contradictions as to recovery and possession of the contraband narcotics from the appellant.
14. No question was raised at the time of cross-examination as to the foisting of the charas by the Excise police due to any animosity or ill will against the appellant. There is no iota of doubt that enmity or hostility did not exist between the excise police and the appellant to falsely implicate the appellant by foisting such huge amount of charas upon him in a bus full of passengers and if there was any case of foisting the charas, then the same could have been done with much smaller quantity. In the case of Khawar and another v. The State (supra) it was held by the Hon'ble Supreme Court of Pakistan as under:
15. "No doubt, all the three P.Ws. belong to same organization but they are as good witnesses as any one else. No enmity between the P.Ws. and the appellants is proved to have been existing prior to the incident. The inconsistencies in the evidence of the witnesses high-lighted by the defence are not of much significance in the circum?stances. Such inconsistencies do occur in the oral version of P.W. recorded about 18 months after the occurrence."
16. The learned counsel has also failed to point out any irregularity or impropriety as to weighing of charas, taking of samples from the eight patties, sending the same to the chemical examiner and findings of the chemical examiner. As to the contention of the learned counsel that the investigation was conducted by the complainant, it would be sufficient to state that the case of the State could not be dismissed on this ground as there is no separate wing of 'Investigation' in the Excise Department and more so it was not alleged that the I.O. was motivated against the appellant or how the appellant was prejudice due to such action. In the case of Zafar v. State (supra) it was held by the Hon'ble Supreme Court of Pakistan as under:
17. "So far as the objection of the learned counsel for the appellant that the Investigating Officer is the complainant and the witnesses of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, wherein it is observed that a Police Officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any way' prejudice the accused person. Though the Investigating Officer and other prosecution witnesses are employees of A.N.G., they had no animosity or rancor' against the appellant to plant such a huge quantity of narcotic material upon him. The defence has not produced any such evidence to establish animosity' qua the prosecution witnesses."
18. The upshot of the above discussion is that the prosecution had satisfactorily placed reliable evidence before the trial court and proved its case beyond any doubt against the appellant. The learned counsel has failed to point out any error of law or misreading of evidence in the impugned judgment and no case has been made out by the appellant whereby we could allow the appeal or reduce the sentence awarded by the trial court. It was for the aforesaid reasons that we found no merit in the appeal and had dismissed the appeal vide our short order dated 26-1-2010.
19. H.B.T./M-39/K ??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.