Stereo H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT
Criminal Appeal No.79-J of 2008
Miraj Khalid. Vs. The State.
Date of hearing
05.11.2015
Appellant by
Barrister Sehr Khosa, Advocate (defence counsel)
The State by
Mr. Muhammad Atif Rao, DDPP
.
SARDAR MUHAMMAD SARFRAZ DOGAR, J.- Miraj
Khalid son of Mian Gul Khan, the appellant, was involved in case FIR
No.1283/2006, dated 18.12.2006, under Section 9(c) of the Control of
Narcotics Substances Act, 1997, registered at Police Station Civil Line,
Gujrat, and was tried by the learned Additional Sessions Judge, Gujrat.
The learned trial Court seized with the matter in terms of judgment
dated 10.4.2008 convicted the appellant under Section 9(c) of the
Control of Narcotic Substances Act, 1997 and sentenced him to
undergo life imprisonment with a direction to pay Rs.2,00,000/- 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 to
him. The appellant has assailed his conviction through filing the instant
appeal.
2.
The prosecution story as alleged in the F.I.R. (Exh.PB/1) lodged
on the complaint (Exh.PB) of Ghulam Jaffar Inspector/SHO (PW-3) is
that 18.12.2006, at 5:30 A.M., he along with Zulfiqar Ali ASI, Umar
Hayat ASI, Sajid Farooq 125/C, Nasir Iqbal 1358/C, Iftikhar Ahmed
1404/C, Muhammad Yaqoob 824/C, Naeem ud Din 1217/C and Sajid
Mehmood was on patrolling at Shaheen Chowk when two unknown
persons having cloth bundles (thans) deboarded from a bus. On seeing
[Criminal Appeal No.79-J of 2008]
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the police party, they fled away, the police chased them and out of them
Miraj Khalid was apprehended whereas the other, whose name later on
disclosed as Aqib Khan, was succeeded to decamp by taking advantage
of darkness. On checking, 135 packets of charas and 10 packets of
opium were recovered, which were wrapped in the cloth bundles
(thans). It was found 3 mounds and 24 kilograms charas and 10
kilograms opium. The complainant separated 10 grams charas from
each packet for chemical analysis, which was found 1350 grams. The
complainant also separated 10 grams opium from each packet for
chemical analysis, which was found 100 grams. The complainant
prepared parcels of recovered charas and opium and taken into
possession vide recovery memo (Exh.PA).
3.
The investigation was conducted by Muhammad Anwar Sub
Inspector (PW-7). Muhammad Anwar Sub Inspector (PW-7) has
completed the usual and necessary steps of investigation and upon
completion of the investigation, report under Section 173 Cr.P.C. was
submitted before the learned trial Court.
4.
The learned trail Court formally charge sheeted the accused on
06.4.2007, to which he pleaded not guilty and claimed trial. The
prosecution in order to advance its case, produced as many as seven
witnesses. Ghulam Jaffar Inspector/SHo (PW-3) is the complainant and
Muhammad Anwar Sub Inspector (PW-7) was investigator of the case.
Muhammad Aslam Sub Inspector (PW-6) was scriber of FIR. Ummar
Hayat ASI (PW-5) was recovery witness. Aamir Mahmood 1000/H.C.
(PW-1) deposed that on 18.12.2006 he received two sealed parcels
containing charas and opium from the SHO/complainant and on
27.12.2007 he delivered the said parcels to Muhammad Iqbal 524/C for
onward transmission to office of Chemical Examiner. Muhammad
Iqbal 524/C (PW-2) deposed that on 27.12.2006 he received two sealed
parcels and deposit the same to the office of Chemical Examiner
Lahore on the same day. Basharat Hussain (PW-4) was formal witness
regarding the service of Aqib Khan co-accused.
[Criminal Appeal No.79-J of 2008]
5.
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On 07.3.2008, learned Deputy District Public Prosecutor closed
the prosecution case after tendering the report of Chemical Examiner
(Exh.PD).
6.
The appellant was also examined under Section 342 Cr.P.C.
wherein he opted not to lead defence evidence and not to appear as his
own witness in terms of Section 340(2) Cr.P.C. in disproof of
allegations leveled against him and while reply to a question that why
this case against him and why the PWs have deposed against him, the
appellant made the following question:“I am helpless person. Police had falsely implicated me in this
case, while lacking of real culprit. It is not possible for a single
person to transport a huge quantity of contraband. Police has
involved me just to show its efficiency and released real culprit
after receiving illegal gratification.”
7.
After hearing the arguments advanced by the learned counsel
appearing on both sides, the learned trail 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.
8.
At the very outset, learned counsel appearing on behalf of the
appellant does not oppose the conviction of the appellant in this case,
however, requests for suitable reduction in the sentence awarded to
him, in view of Ameer Zeb’s case (PLD 2012 SC 380), stating that
135 packets of charas total weighing 135 K.G. and 10 packets of opium
total weighing 10 K.G. were allegedly recovered from the appellant,
however, only one parcel of 1350 grams charas in amalgamated form
out of 135 kilograms charas and one parcel of 100 grams opium in
amalgamated form out of 10 kilograms opium were prepared as sample
for chemical analysis; that report of the Chemical Examiner also
reveals that only one parcel of charas and one parcel of opium were
sent for chemical analysis which were found containing charas and
opium, therefore, the maximum recovery of contraband material proved
against the appellant does not exceed from 1500 grams.
[Criminal Appeal No.79-J of 2008]
9.
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On the other hand, learned Law Officer 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.
10.
We have heard the arguments advanced by the learned counsel
for the appellant as well as learned Law Officer and have minutely
perused the record available on the file.
11.
As the learned counsel for the appellant has not opted to assail
conviction recorded by the learned trail 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 corroborated by Ghulam Jaffar Inspector/SHO
(PW-3) and the positive report of Chemical Examiner (Exh.PD) with
regard to sample sent for chemical analysis in absence of any ill will to
falsely involve the appellant on the part of police officials, we have
been persuaded to hold that the appellant was rightly convicted and
sentenced by the learned trial Court. Therefore, we are of the
considered view that conviction of the appellant under Section 9(c) of
C.N.S.A, 1997 by the learned trial court is based upon well-settled
principles of appreciation of evidence and we do not find any reason to
interfere with the same.
12.
As regards quantum of sentence awarded to the appellant by
learned trail Court is concerned, we have carefully gone through the
depositions of Ghualm Jaffar Inspector/SHO (PW-5), wherein he
deposed as under:“One accused namely Meraj Khalid present in the court was
captured by us, whereas co-accused succeeded in taking to his
heels. The charas was found 135 K.G. on weight and opium was
found as 10 K.G. 10 gram was separated from every packet as
sample. Above separated narcotics was converted into one parcel
which was sealed there and seal of M.A. was affixed thereupon.
Recovery memo of the above charas and opium was prepared
Exh.PA which was signed by me and Zulfiqar Ahmad ASI.”
[Criminal Appeal No.79-J of 2008]
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However, nevertheless, the complainant had not made separate
parcels, the sample taken from each packet of charas and made one
parcel by amalgamating the same. Same was done with the samples of
opium. 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 330) 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 representative sample.”
It was further held by the Hon’ble Apex in Ameer Zeb’s case
(supra) which reads 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 from 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.”
In this regard we respectfully refer another case Mst.Nasreen
Bibi v. The State (2014 SCMR 1603), wherein Hon’ble Supreme Court
of Pakistan has held as under:“---In the case in hand only one consolidated sample of five
hundred grams had been secured and tested and, thus, only one bag
out of the four bags recovered could be counted towards the
appellant’s guilt. If four bags contained forty kilograms of poast
then one bag could be said to have contained ten kilograms of poast
and it is only that quantity which could be considered against the
appellant for the purposes of her conviction and sentence……”
Law laid down by the Hon’ble Supreme Court of Pakistan in the
case of Ameer Zeb’s case (PLD 2012 SC 380) reiterated in Fareed
Ullah vs. The State (2013 SCMR 302) is as under:“For the purposes of clarity and removal of confusion it is
declared that where any narcotic substance is allegedly
recovered while contained in different packets, wrappers or
containers of any kind or in the shape of separate cakes, slabs or
any other individual and separate physical form it 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
form for chemical analysis and if that is not done then only that
quantity of narcotic substance is to be considered against the
[Criminal Appeal No.79-J of 2008]
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accused person from which a sample was taken and tested with a
positive result.
In the case in hand 80 cakes/slabs contained in 20 packets kept
in 22 baskets had allegedly been recovered from the appellant’s
possession but according to the prosecution only a “small” and
unspecified quantity was taken from every packet as a sample
and then those samples were mixed up and made into one
sample of 10 grams which was thereafter sent to the Chemical
Examiner for analysis. If 80 cakes/slabs had statedly been
recovered from the appellant’s possession and the total weight of
the entire quantity was 20 kilograms then, in all likelihood, each
cake/slab weighed about 250 grams. As only one sample of 10
grams had been sent to the Chemical Examiner for analysis and
the report in that regard had been received in the positive,
therefore, for safe administration of justice it may be concluded
that the appellant was liable to be held responsible for having
only one cake/slab of charas weighing 250 grams in his
possession.”
13.
We have noted that in this case no separate samples taken from
135 packets of charas (total weighing 135 kilograms) and 10 packets of
opium (total weighing 10 kilograms) recovered from the appellant were
sent for chemical analysis rather only one parcel of 1350 grams charas
and one parcel of 100 grams opium in amalgamated form were
prepared. As per the chemical examiner report (Exh.PD) regarding
charas and opium, one consolidated sample of charas and one
consolidated sample of opium had been tested, thus, only one packet of
charas weighing 1350 grams, out of 135 packets and one packet of
opium weighing 1000 grams out of 10 packets could be considered
against the appellant. The schedule provided in Ghulam Murtaza’s case
(PLD 2009 Lahore 362) reflects that imprisonment of Rigorous
Imprisonment for four years, six months upon recovery of charas
exceeding one kilograms up to two kilograms and fine of Rs.20,000/and in default Simple Imprisonment for five months, and Simple
Imprisonment for 01 years and 08 months upon recovery of opium up
to 1000 grams and fine of Rs.7000/- and in default S.I. for four months
have been provided.
14.
In these circumstances, we have arrived at the conclusion that in
view of the contention raised by the learned counsel for the appellant,
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in the interest of justice and for the safe administration of justice, the
sentence already undergone by the appellant, would be adequate.
15.
Consequently, we are of the firm opinion that the appellant
deserves a lenient view. Hence, the instant Criminal Appeal bearing
No.79-J of 2008 filed by the appellant, namely Meraj Khalid is
dismissed with the modification that sentence of life imprisonment is
reduced to already undergone by the appellant. As the appellant had
already served out more then eight years of his sentence of
imprisonment, therefore, we felt persuaded to set aside his sentence of
fine so as to meet the ends of justice and it is ordered accordingly.
16.
The appellant is in jail. He be released forthwith if not required
in any other case.
(Aalia Neelum)
Judge
(Sardar Muhammad Sarfraz Dogar)
Judge
Approved for reporting.
Judge
Ejaz*
Judge