MUHAMMAD RAMZAN ALIAS RAMZOO Versus THE STATE Sardar Mohammad Ishaq , Makhdoom Wali

This criminal appeal arises from the judgment of the learned Sessions Judge, Karachi (East), whereby he on 25-7-1987, convicted Mohammad Ramzan alias Ramzoo son of Allan, the appellant, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced him to two years' rigorous imprisonment and to pay fine of Rs.200 and or in default of payment of fine to suffer further R.I. for one month. The learned trial Court also allowed the appellant the benefit of section 382-B, Cr.P.C. The prosecution case is that Bashir Ahmad, S.H.O. at Soldier Bazar Police Station, Karachi was on patrol duty on 28-7-1986 at about 11-30 p.m. in the Ilaqa. When he reached in Peoples Colony, Alfred Street, he got spy information that the appellant was selling Heroin. He acquired two Mashirs, namely, Mohammad Javed son of Ghulam Sarwar and Abdul Rasheed son of Shah Mohammad and went to the place of information and got hold of the accused/ appellant. Upon his personal search in the presence of Mashirs three Puries of Heroin were recovered from right side pocket of his Shalwar and cash of Rs.170. He weighed the Heroin and it was found to be 16 grams. He secured Heroin and prepared Mashirnama. He also arrested the accused /appellant under the same Mashirnama. Upon reaching the police station he lodged the F.I.R. The Heroin was sent to the Chemical Examiner for examination and report. Upon completion of investigation the challan was submitted in Court. In support of its case the prosecution examined only two witnesses, namely, P.W.1 Mohammad Javed, Mashir as Exh.4 and Bashir Ahmad I.O as Exh.6.

2. In his statement the appellant denied to have committed the offence. He further submitted that he had been implicated falsely on account of enmity with police. He stated to have made an application to the I. G . , Sind Police against the Inspector, Police Station Soldier Bazar on 26-6-1986. He also examined himself on oath. He also examined Gul Butt as defence witness.

3. The learned counsel for the appellant submitted that the statement under section 164, Cr.P.C. had been recorded before the F.I.R. and hence it has vitiated the trial. He urged that the Heroin allegedly recovered from the possession of the appellant was 16 grams and that it was sent to the Chemical Examiner after four days of the incident. But according to the report of the Chemical Examiner the weight of Heroin in question was 20.210 grams. This disparity in the weight clearly indicated that the Heroin allegedly seized on the date of incident was not the same which was sent to the Chemical Examiner. He further submitted that as per F.I.R. the Heroin was allegedly recovered from the pocket of the appellant's Shalwar, whereas P.W.1 Mohammad Javed in his deposition has deposed that the Heroin and the watch and cash of Rs.170 were recovered from the pocket of the accused. Lastly, he emphasised that the P.W. 1 had signed on the National Identity Card in Urdu whereas the signatures on the Mashirnama of this witness were in English. He, therefore, stated that either the signatures of this P.W.1 were forged by the 1.0. of the case or that this P.W. was not present at the scene of occurrence. The counsel, therefore, stated that the appellant who is an old man of 75 years of age is entitled to the benefit of doubt and that his denfence is plausible.

4. The learned counsel for the State, on the other hand, submitted that no statement under section 164, Cr.P.C. was recorded. It was only the Mashirnama of recovery of Heroin and arrest of the appellant which was prepared at the spot. He submitted the difference in weight of Heroin may be on account of moisture. He urged that the sealing of the Heroin on the spot was not doubted during cross-examination of S.H.O. He argued that a person mar sign on a particular document in 'Urdu' and on another document in 'English' and that no inference can therefrom be drawn that the person is not the same. In his submission it was however not put to this witness that he was a different man that the one who acted as Mashir. The application allegedly sent to the I.-G. Police was not reliable inasmuch as its delivery in the office of I.-G. Police was not proved.

5. I have given my earnest consideration to the submissions made by the learned Advocate before me and I have also perused the impugned judgment and BHP of the trial Court. I do not find any substance in the contentions of the learned counsel for the appellant. There is no 164, Cr.P.C. statement available on record on the basis of which it could be said that it was recorded earlier than the recording of the F.I.R. The I.O. P.W.2 in cross-examination stated 'that I had not weighed the Heroin at the time of sending bundle/packet to the Chemical Examiner'. He however, admitted that he had weighed the Heroin at the time of its recovery. From the cross-examination it appears that no specific question was put to the Investigating Officer to the effect that the Heroin allegedly recovered from the possession of the appellant was either not sent to the Chemical Examiner or that the report received from him was not in respect of that very Heroin. On the contrary, it was suggested to the Investigating Officer on behalf of the appellant in cross-examination that no Heroin was secured from his possession. The difference in weight may be due to moisture or on account of two different weighing machines used for weighing it, one on the spot and the other in the office of the Chemical Examiner. Similarly I do not find force in any of the other contentions made by the learned counsel. The P.W.1, Mohammad Javed has simply stated that the Heroin was recovered from the pocket of the accused but he has not clarified it that it was from the pocket of the Shalwar of the accused. Likewise no adverse inference can be drawn against, the Mashir simply on the ground that at one place, namely, on the National Identity Card he had put his signature in 'Urdu', whereas he had signed the Mashirnama in 'English. The identity of the Mashir was not specifically doubted in his cross-examination. I find that the prosecution has established its case against the applicant beyond every reasonable doubt and that the learned trial Court has not committed any error in appreciation of evidence brought on record. I, therefore, see no reason to disagree with the conclusion and findings of the learned Sessions Judge.

6. Therefore, I find no merits in this appeal which is consequently dismisses. These are the reasons for the short order of dismissal passed immediately upon the conclusion of the hearing of the appeal.

S.G.D./M-375/K Appeal dismissed.