ABDUL GHAFFAR Versus THE STATE Sardar Muhammad Ishaque , Imam Bakhsh

FAKHRUDDIN H. SHAIKH, J. -- This is an appeal from judgment of IVth Additional Sessions 'Judge, South Karachi, dated 30th September, 1987, whereby the .appellant was convicted under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and sentenced to suffer R.I. for fifteen years, whipping numbering twenty stripes and to pay fine of Rs.5,000 (Rs. five thousand) or in default of payment of fine to further undergo R.I. for one year.

2. The charge against him was that on 24-12-1987 at 6-15 p.m. he was found in, possession of one and half kilogram of heroin on Nishtar Road, Karachi.

3. The case of the prosecution was that Ghulam Hussain Baloch, E.T.O. Karachi received spy information that the appellant .was possessing heroin. He picked up Mashirs Azeem Baloch and Muhammad Saleem and proceeded to the Nishtar Road, where the appellant was found standing near K.M.C. Workshop. He was held up and his person was searched as a result of which one and half kilograms of heroin was secured. Some heroin was separated for the purpose of sample to be sent to the Chemical Examiner. The remaining quantity was sealed into another parcel. After completing usual investigation the case was sent up for trial.

4. In support of the prosecution case there is evidence of P.W.11 Azeem Baloch, one of the Mashirs, and P.W.2 Ghulam Hussain Baloch complainant. They have proved the F.I.R. and the recovery memo (Exh.3/1). The complainant has also produced chemical report (Exh.4/1), from which it transpires that the parcel sent to the Chemical Examiner contained heroin of commercial grade.

5. The plea of the appellant during his statement under section 342, Cr.P.C. was that he has been implicated in this case due to his friendship with Ismail. This Ismail has enmity with Haji Khudai gal and Suleman, who got him implicated through police. He has also given statement on oath under section 340(2), Cr.P.C. in which he stated that 'Ismail had supplied some blankets to Haji Khudai Gul, who had dispute with Ismail over payment of value of the blankets and that at the instance of Haji Khudai Gul he (the appellant) and Ismail were attested. He did not produce any witness in-defence. Even Ismail, who is said to be the friend of the appellant, has not been examined.

6. We have gone through the evidence of Mashir Azeem Baloch. and Ghulam Hussain Baloch, E.T.O. Azeem Baloch is an independent witness from general public. He has fully implicated the appellant. He was cross-examined at length, but no suggestion was made to him to indicate that he had any motive to implicate the appellant in a false case. Complainant Ghulam Hussain Baloch is also an independent witness. In cross-examination it was suggested to him that he had implicated the appellant at the instance of Haji Khudai Gul and Suleman. He replied in the negative. As already stated above Ismail would have been the best defence witness, but he has not been examined by the appellant. It is not the case 6f the appellant that he had enmity with Khudai Gul or Sideman. It was Ismail with whom they had enmity. Hence even if the appellant was friendly with Ismail, there was no 'reason for the E.T.O. to foist huge quantity of heroin weighing one and half kilograms upon the appellant.

7. The learned counsel for the appellant has pointed out that the place of occurrence has been incorrectly mentioned in the charge as Out Gate of Railway. Godown on MacLeod Road. Karachi. Whereas according to F.I.R. the appellant was held at Nisthar Road near, K.M.C. Workshop. The error in the place of occurrence appears to be due to inadvertence on the part of the trial Court. No prejudice has been caused to the appellant by this error. He was throughout represented by a counsel and the appellant should be in, no doubt about the main allegation against him i.e. of possession of one and half kilograms of heroin. The error pointed out by the learned counsel, is, in our view, curable according to section 537, Cr.P.C.

8. For the above reasons we hold that the charge of offence under Article 4 of the said Order is fully proved. In view of the huge quantity of heroin found in possession of the appellant the sentence awarded by the trial Court also appears to be adequate

Consequently the appeal is dismissed.

S.A./405/F.Sh. Appeal dismissed.