Syed Mudassar Shah vs State

Stereo H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, RAWALPINDI BENCH.

JUDICIAL DEPARTMENT

Cr. Appeal No. 172 of 2010 Syed Mudassar Shah The State.

JUDGMENT

Date of hearing _______21.01.2014__________________________________ Appellant by: Raja Shahzad Anwar, Advocate for the appellant.______ Respondent by: Ch.Muhammad Sarwar Sidhu, Addl. Prosecutor General and Raja Tanveer Ahmad Sathi, Special Prosecutor ANF with Izzat, SI.

Miss Aalia Neelum, J.- Syed Mudassar Shah son of Syed Sarwar Shah, appellant was involved in case F.I.R. No.89 dated 17.12.2008, offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997, registered at Police Station, A.N.F., Rawalpindi and was tried by the learned Judge Special Court, C.N.S.A, Rawalpindi. The learned trial court seized with the matter in terms of judgment dated 22.09.2010 convicted the appellant under Section 9 (C) of the Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for life with the direction to pay Rs.5,00,000/-as fine and in case of default thereof, further undergo Simple Imprisonment for one year. The benefit of Section 382-B, Cr.P.C was also extended in favour of appellant. The appellant has assailed his conviction through filing the instant jail appeal.

2.The prosecution story as alleged in the F.I.R (Exh.P.C/1) lodged on the complaint (Exh.P.C) of Waqar Ahmed, S.I. (PW-2) is that on 17.12.2008 on receipt of secret information, a raiding party

was constituted consists of Waqar Ahmed, S.I. (PW-2), Majid Jalil, S.I. (PW-3) and other officials of Police Station A.N.F, Rawalpindi, who conducted raid under the supervision of Major Fayyaz Hussain, D.D. Incharge of the Police Station and proceeded to Motorway Islamabad Toll Plaza on official vehicle bearing No.IDM-5077 and GK-738 driven by Khalid Mehmood and Ghulam Muhammad, drivers. At about 1.45 p.m. a vehicle Suzuki Mehran white colour arrived there from Peshawar side which was intercepted outside Toll Plaza. The person present on the driving seat was apprehended at spot, who disclosed his name as Syed Mudassar Shah-accused. On search of the said vehicle, underneath the C.NG Cylinder, 69 Packets containing Charas (Exh.P.1), two Packets containing opium (Exh.P.2) and one Packet containing heroin (Exh.P.3) were recovered. Out of the recovered narcotic substances, the complainant separated 10 grams charas from each packet and prepared samples containing 69 parcels. Similarly, 10 grams opium from each packet was taken and two parcels for sample containing 10 grams opium were prepared. Likewise, one gram heroin was separated out of 980 grams and separated one gram for chemical analysis and made into sealed parcel. The complainant (PW-2) also took into possession motorcar (P-4), registration book (P-5) along with keys (P-6) vide recovery memo Exh.P.A. On personal search of the accused the complainant also recovered a mobile phone (P-7), driving license (P-8), photocopy of CNIC (P-9) and currency Notes valuing Rs.2980/- (P-10), which he took into possession vide recovery memo Exh.P.B attested by the PWs. The complainant drafted complaint (Exh.P.C) and sent the same to the Police Station through Sajid Ali, Constable, for registration of formal F.I.R.

3.Thereafter the investigation was conducted by Waqar Ahmad, S.I. (PW-2), who on receipt of copy of F.I.R., made rough site plan (Exh.P.D) of the place of recovery and recorded the statements of the prosecution witnesses under Section 161 Cr.P.C. On reaching the police station, the Investigating Officer handed over case property to Moharrar Malkhana for safe custody and for onward transmission to the quarter concerned. Having found the accused guilty, the Investigating Officer prepared report under Section 173 Cr.P.C., while placing his name 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 appellant on 18.07.2009, to which he pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as three witnesses. Waqar Ahmed, S.I. (PW-2) is the complainant of the case, whereas, Majid Jalil, Constable, (PW-3) is the witness of the recovery. The learned trial court also examined Dr. Khalid Islam, Chemical Examiner as CW-1 who tendered the chemical report as Ex.PE. Said CW-1 was summoned on the application of the appellant. On presentation of complaint, Muhammad Zubair, S.I. (PW-1) had chalked out formal

F.I.R.

5.On 17.04.2010, the learned Special Public Prosecutor gave up Raja Asif Mahmood, A.S.I and Maqsood Ahmed Mehar, S.I. PWs being unnecessary and closed the prosecution evidence.

6.The appellant was also examined under Section 342, Cr.P.C. wherein he opted to lead defence evidence and to appear as his own witness in terms of Section 340(2) Cr.P.C. in disproof of allegations levelled against him in the prosecution evidence and

while replying to a question that why this case against him and why the PWs have deposed against him, the appellant made the following deposition:-

“I am innocent and falsely implicated in the present case. In fact one Fayyaz, who was conductor on my flying coach, subsequently, he was plying my flying coach and later on he was arrested in narcotic case vide FIR No.292 dated 26.11.2004 Police Station Tarnol, Islamabad and convicted by the competent court. After release, he again approached me for job, but I refused to take him on job. He suspected that I had got him arrested in the said narcotic case. On the fateful day, I went to Faisalabad to meet one of my cousin Mubarak Shah, who was running a tyre shop at Faisalabad. On my way to Faisalabad, I alighted from the public transport vehicle at Chakri service area of motorway. The said Fayyaz was accompanying me in the said bus from Peshawar. I was apprehended there by some persons who were in plain clothes and then brought to PS ANF, Rawalpindi and involved me in this false case. The copies of FIRs which were registered against the said Fayyaz are placed on record as Mark ‘A’ and ‘B’, respectively. According to the prosecution case, I was apprehended by ANF officials from near Toll Plaza in Motorcar No.IDK-8862. In fact when I was taken to the PS ANF, Rawalpindi, the said motorcar is already stood parked there. The fact of the matter is that the said motorcar never happened to be on the motorway during the whole month of the days of occurrence. This fact clearly suggests malafide on the part of the ANF and false hood of its case. In this respect my cousin Haji Noor Hussain Shah filed an application to the NHA for providing record qua the said motorcar and on the said

application the Pakistan Revenue Automation Limited (PRAL) provided the requisite record which is placed on record as Mark ‘C’ consist of 129 leaves. The application submitted to the NHA for provision of record is mark ‘D’ while the order whereby the applicant was allowed is mark ‘E’.

7.The appellant produced Kaisar Sharif, Project Manager of Pakistan Revenue Automation (Pvt) Ltd (PRAL) as (DW-1) and he tenderd a certificate as (Exh.DW.1/1) qua entry and exit of Toll Plazas at Motorway M-1, M-II and M-III which includes Islamabad Motorway Interchange, according to which no entry with regard to exit record of the vehicle was found in their data base. After tendering documents i.e. copies of F.I.Rs, registered against Fayyaz (Mark-A & B), record of the Pakistan Revenue Automation (Pvt) Ltd (PRAL) consists of 129 leafs (Mark-C) and the application addressed to the N.H.A., for provision of record (Mark-D), the appellant closed his defence evidence on 18.9.2010.

8.After hearing the arguments advanced by the learned counsel appearing on both sides, 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 into conviction of the appellant in the above stated terms.

9.At the very outset, learned counsel for the appellant has opted not to object conviction of the appellant, however, prayed for reduction in his sentence mainly on the touchstone of dictum of law laid down by the August Supreme Court of Pakistan in the case of “Ameer Zeb v. The State” (PLD 2012 SC 380).

10.On the other hand, learned Additional Prosecutor General has opposed the contention raised on behalf of the appellant and stated that in view of the quantity of recovered narcotic substance, the learned trial court has rightly convicted the appellant.

11.We have heard the arguments advanced by the learned counsel for the appellant as well as the learned Additional Prosecutor General and have minutely perused the record available on the file.

12.As the learned counsel for the appellant has not opted to assail conviction recorded by the learned trial court against the appellant, 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 Waqar Ahmed, S.I. (PW-2) and Majid Jalil, Constable (PW-3), the positive report of Chemical Examiner (Exh.P.E) with regard to sample sent for chemical analysis, particularly the fact that the complainant and other officials had no previous ill will to falsely involve the appellant in the instant case, we have been persuaded to hold that the appellant was 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 appellant, 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.

13.However, as regards the question of sentence awarded by the learned trial court to the appellant, we have carefully gone through the record available on the file, which reveals that during

the course of cross-examination, Majid Jalil, Constable as PW-3 admitted that the recovered contraband charas was in the shape of slabs/lither and quantity of slabs/lither was 10/12. He further admitted in his cross-examination which is as under:- “that the sample was taken from each packet and not from each lither. The colour of charas was dark brown and it was not in green colour. The opium was of blackish colour. The heroin was off- white. All the proceedings were completed near the Toll Plaza and total parcels prepared in this case was 77.”

Apart from this, the complainant (PW-2) during cross-examination stated that he did not remember as to how many packets of charas contained in each parcel of case but simultaneously on the request of the learned defence counsel, the case property was de- sealed and was opened and the same was found as under:- “each packet consists of 12 lithers separately wrapped in polythene envelopes and the colour of lithers is blackish green.

14.However, nevertheless, the complainant had not taken the sample from each slab/lither but he separated 10 grams of charas out of 69 packets and prepared 69 parcels while the remaining charas was made into three separate parcels 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 be a representation sample.”

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 forum 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.”

15.Fact also remains that the appellant is behind the bars since his arrest i.e. 17.12.2008 whereas the report sent by the Superintendent Central Prison, Haripur through letter No.3971 dated 26.06.2012 reveals that the appellant had already served eleven years, two months and two days in the jail but this report was submitted by the Superintendent Central Jail, Haripur wayback one year and eight months and if this period is included, he has served out twelve (12) years and ten (10) months approximately in the jail.

16.Moreover, we have also carefully gone through the record available on file and failed to find out any “Saza slip” (conviction slip) annexed with it, meaning thereby that the appellant had not been convicted earlier by any court of law.

17.In these circumstances, we have arrived at the conclusion that in view of the contention raised by the learned counsel for the appellant, in the interest of justice and for the safe administration

of justice, the sentence already undergone by the appellant, would be adequate.

18.Consequently, we are of the affirm opinion that the appellant deserves for the lenient view. Hence the instant Criminal Appeal bearing No.172-J/2010 filed by the appellant, namely, Syed Mudassar Shah is dismissed with the modification that the sentence of life imprisonment R.I. is reduced to already undergone by the appellant, who shall be released forthwith, if not required in any other case. However, the burden of fine as directed by the learned trial court shall remain intact.

(KH. IMTIAZ AHMAD) (AALIA NEELUM)

JUDGE JUDGE

Announced in open Court on 23.01.2014.

JUDGE JUDGE

Hamid/*