Sher Afzal vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.484-P/2012

Date of hearing: 12.02.2015

Appellant (s) : Sher Afzal by Mr. Niaz Muhammad, Advocate.

Respondent (s) : The State by Mian Arshad Jan, AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This appeal is directed against the judgment dated 20.09.2012, rendered by learned Additional Sessions Judge-X/Judge Special Court, Peshawar, whereby appellant Sher Afzal has been convicted under section 9 (c ) Control of Narcotic Substances Act, 1997 and sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/- or in default thereof to undergo 02 months S.I. further. Benefit of S.382-B Cr.P.C. has been extended to him.

2.The prosecution case as unfolded in First Information Report Exh.PA, registered on the basis of murasila Exh.PA/1 is that, on 05.08.2011 Turab Khan SI (PW.1) alongwith Rahat Ullah ASI, Abdul Ali IHC, Constable Said Muhammad No.2893 and other police officials, was on routine *M.Siraj Afridi P.S. D

patrolling duty in General Bus Stand Haji Camp, Peshawar, where a young boy holding a white colour bag being suspected, was intercepted by him. On search of the bag, 19 packets containing Charas Pukhta, each packet weighing one Kilogram, making the total of 19 Kilograms charas, were recovered, out of which 5/5 grams charas from each packet were separated for the purpose of chemical analysis by the FSL and sealed in parcels while the remaining quantity was sealed separately. On query, the person disclosed his name as Sher Afazal (appellant-convict herein), who was formally arrested. Turab Khan SI (PW.1), prepared recovery memo Exh.PW.1/1, drafted murasila and sent the same to Police Station for registration of the case. He sent the samples to the FSL vide application Exh.PW.1/3. Gohar Zaman Inspector (PW.3)/I.O. rushed to the spot and prepared site plan Exh.PW.3/1 on the pointation of Seizing Officer Turab Khan, recorded statements of the PWs under section 161 Cr.P.C. and that of the accused/appellant. After completion of investigation he handed over case file to the SHO, who submitted challan against the appellant.

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3.On receipt of challan by the learned Trial Court, appellant was summoned and formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case prosecution examined as many as five witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342 Cr.P.C., wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath under section 340 (2) Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides convicted and sentence the appellant as mentioned above, hence, this appeal.

4.Learned counsel for the appellant argued that impugned judgment is against the law, facts and evidence on record; that testimony of the PWs who are police officials are suffering from material contradictions and discrepancies making the alleged recovery highly doubtful; that no independent person has been associated with the alleged recovery proceedings despite that the place of occurrence has been shown as general vehicle stand; that samples have been sent to the FSL with a considerable delay of 18 days, for which *M.Siraj Afridi P.S. D

no plausible explanation has been furnished by the prosecution, therefore, report of the FSL has lost its sanctity;

that learned Trial Court has stretch the evidence in favour of the prosecution and did not extend the benefit of doubt to the appellant/accused, which was his right. He lastly contended that if this Court is satisfied about the guilt of the appellant on the basis of the evidence on record, then the case of the appellant being at par with the case of convict-accused in case titled, “Mudassir Vs the State” (2012 YLR Peshawar 463), wherein in case of recovery of 19 Kilograms narcotics, this Court while taking lenient view on the ground of tender age of the convict and being first offender, his sentence from life imprisonment had been reduced to 5 years R.I. and fine from Rs.1,00,000/- to Rs.25,000/-, therefore, appellant be dealt with the same treatment.

5.Conversely, learned AAG while controverting the arguments of learned counsel for the appellant contended that appellant has been arrested red handed along with huge quantity of contrabands; that though PWs are police officials, but they have no ill will or enmity to falsely implicate the appellant, therefore, their straight forward account cannot be *M.Siraj Afridi P.S. D

discarded; that by virtue of section 25 of the Control of narcotic Substances Act, 1997, non-citing of a public witness in recovery proceedings would not be fatal to prosecution case; there is no bar on the I.O. to send the sampled beyond 72 hours of the seizure or receiving the FSL report with delay as when the same has not been questioned during prosecution evidence; that appellant did not bother to appear as his own witness under section 340 (2) Cr.P.C. in disproof of the charges; that prosecution has successfully prove the guilt of the appellant up to the hilt and the learned Trial Court was justified by holding him guilty of the offence, to which no exception can be taken. He while referring to judgment of this court in case titled, “Mudassir Vs the State” reported as (2012 YLR 463), relied upon by learned counsel for the appellant, contended that with utmost respect the same being against the statute, appellant cannot take benefit of the same.

6.We have considered the arguments advanced from both the sides and perused the record with their valuable assistance.

7.During Trial, Turab Khan S.I., the Seizing Officer appeared as PW.1. In his examination-in-chief he *M.Siraj Afridi P.S. D

reiterated the same story as set forth by him in his initial report. He further added that after recovery of the narcotics, he separated 5/5 grams sample from each packet for the purpose of chemical analysis by the FSL, prepared recovery memo Exh.PW.1/1 in presence of its marginal witnesses and also issued arrest card of the appellant besides drafting of murasila Exh.Pa/1. Rahat ASI, marginal witness to recovery memo Exh.PW.1/1, appeared as PW.4. He also furnished the ocular account of the incident and supported the recovery from direct possession of the appellant. Both these PWs have been subjected to taxing cross-examination, but nothing beneficial to defence could be extracted from them. No doubt, they are police officials, but they have made consistent statements on material aspects of the occurrence and defence failed to point out any discrepancy in their testimony. They have supported recovery of huge quantity of charas from direct possession of the appellant at given date, time and place. Their incriminating statements on oath will be sufficient enough to connect the appellant with commission of crime.

Defence has not brought any shred of evidence to show as to why the PWs would involve the appellant falsely, especially *M.Siraj Afridi P.S. D

when none from them has any enmity with the appellant.

Contention of non-association of any public witness with the recovery proceedings is not sustainable, as section 25 of the Control of Narcotic Substances Act, 1997 has excluded the application of section 103 Cr.P.C. to such cases. Even otherwise, police now-a-days cannot possibly associate any public witness in such like cases, as people generally do not cooperate with the police due to fear of earning any enmity with the drug paddlers. The appellant failed to produce any evidence to substantiate his version that he was falsely implicated by the PWs.

8.It appears from the murasila, recovery memo as well as testimony of the Seizing Officer and marginal witness to the recovery memo that from each packet of charas 5/5 grams have been separated as samples and sent to the FSL for chemical analysis by the FSL report whereof is in positive. The representative samples drawn from each packet coupled with positive report of the FSL, are sufficient to prove that entire stuff packed in the packets were narcotics. The recovered narcotics have been exhibited by the prosecution before the learned Trial Court and the defence has badly failed to shatter *M.Siraj Afridi P.S. D

the prosecution evidence. Under section 29 of the Control of Narcotic Substances Act, 1997, when the recovery of contraband was made from the appellant, burden to explain the possession whether actual or constructive, was on the appellant to discharge, but neither he led any evidence in defence nor appeared in disproof of the prosecution evidence under section 340 (2) Cr.P.C. and in this way, charge laid upon him remained un-rebutted. The argument of the learned counsel for the appellants about delay in sending the samples would be of no significance because there is no bar on the I.O. to send the sample beyond 72 hours of the seizure or receiving the FSL report with delay. Control of Narcotics (Government Analysts) Rules 2001, could not control substantive provisions of Control of Narcotics Substances Act, 1997, and to be applied in such a manner that its operation would not frustrate the purpose of the Act under which the Rules were framed. Failure to follow Control of Narcotics (Government Analysis Rules, 2001, would not render the search, seizure and arrest under CNS Act, 1997 an absolute nullity and make entire prosecution case doubtful, except for the consequence provided in said rules. The rules are *M.Siraj Afridi P.S. D

directory and not mandatory so cannot control the substantive provision of the Control of Narcotic Substances Act,1997.

Belated dispatch of samples for analysis would not be fatal to the prosecution case, in absence of any objection regarding the same having been tampered or manipulated. Reliance may be placed on case titled, “Gul Alam Vs the State” (2011

SCMR 624).

9.In light of the evidence available on record, prosecution has successfully established the guilt of the appellant through cogent and confidence inspiring evidence, hence, the learned Trial Court was justified by holding the appellant guilty of the offence.

10.So far as the judgment of this court, referred and relied upon by learned counsel for the appellant in case titled, “Mudassir Vs the State” (2012 YLR 463), is concerned, we have thoroughly gone through the same.

Admittedly, the quantity of the recovered narcotics in this case and in the case Supra as well as the age of accused of the two cases and their past history, are one and the same, but judgment (supra) of this court, with utmost respect in our humble view, being delivered in absence of proper assistance *M.Siraj Afridi P.S. D

is against the statute because word “shall” used in proviso to S.9 (c ) Control of Narcotic Substances Act, curtails the discretion of the court to reduce the sentence where the recovered quantity of the narcotics substance exceeds ten kilogram. For convenience we would like to reproduce S.9 of Control of Narcotic Substances Act, 1997, which runs as under:-

“S.9 punishment for contravention of

sections 6, 7, and 8:- Whoever contravenes the provisions of sections 6, 7 or 8, shall be punishable with:-

(a)imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;

(b)imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does ot exceed one kilogram.

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(c ) death or imprisonment for life or

imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b).

Provided that if quantity exceeds ten

kilogram the punishment shall not be less than imprisonment for life.

11.In the instant case, the quantity of the recovered narcotics exceeds 19 Kilograms, therefore, under proviso to S.9 of CNS, Act, 1997, the punishment shall not be less than imprisonment for life. As regard the judgment of this Court relied by the learned counsel for the appellant, with utmost respect suffice it to say that the same being judgment in per incuriam, shall have no binding effect, as law of precedent is not applicable to per incuriam decisions, which carry no binding force. The Hon’ble Supreme Court in case titled, “Gulshan Ara Vs the State” (2010 SCMR 1162), has defined “judgment per incuriam” in the following words:-

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“Decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision, or when the decision is given in ignorance of the terms of statute or rule having statutory force”.

The apex Court in case titled, “Fasih ud Din Khan and others Vs Government of Punjab and others” (2010 SCMR 1778), while defining per incuriam, held the following in Paragraph No.10 of the judgment:- “The word per incuriam means “carelessness” as held by this Court in “Sindh High Court Bar Association V Federation of Pakistan” (PLD 2009 Supreme Court 879). It is also settled principle of law that once the Court has come to the conclusion that the judgment was delivered per incuriam. Such judgment *M.Siraj Afridi P.S. D

itself is without jurisdiction as per

incuriam, therefore, learned High Court

erred in law to give due weight to said

observation without application of

mind....”.

12.Thus, taking guidance from the judgment of the apex Court (supra), any judgment, which is against a statute or a precedent or given as a result of lack of care or through inadvertence shall be said to be a judgment in per incuriam and the law of precedent is not applicable to per incuriam decision. Reference in this regard can be made to “Inland Revenue Appellate Tribunal of Pakistan Vs Rupali Polyester LTD” (2014 PTC 353). Moreso, where the terms of a statute or ordinance are clear, even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to the meaning of the enactment.

Guidance in this regard may be derived from (AIR 1916 Privy Council 184).

13.For what has been discussed above, the appellant-convict cannot take any benefit from the judgment of this court referred above, thus, no case for reduction of *M.Siraj Afridi P.S. D

sentence could be made out. The offence is heinous in nature which is not only against the State but affecting the entire society, therefore, offenders of such like offences, playing with health and lives of the people of the society do not deserve any leniency. Resultantly, this appeal being without any substance stands dismissed.

Announced.

JUDGE

JUDGE

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