1. ' IMAM BUX BALOCH, J.---All these three jail appeals arising out of single judgment, dated 24-10- 2009, passed by the learned Special Judge, C.N.S., Jacobabad, are being disposed of by this common judgment. The learned Special Judge, C.N.S., Jacobabad, has convicted all the appellants under section 9(c) of the Control of Narcotic Substances Act, 1997 to undergo R.I. For life and to pay fine of Rs,100,000 each and in case of their failure to pay the fine, each of them would undergo simple imprisonment for a period of six months. The learned trial Court also extended benefit of section 382-B, Cr.P.C. To the appellants/convicts .
2. ' The case of the prosecution in brief is that S.H.O. Garhi Khairo Qurban Ali Khokhar was on patrolling, where he received spy information that Charas is being transported from Quetta to Karachi in a Prado Jeep. After receiving such information, the complainant held Nakabandi at Khokhar Larro, at Garhi Khairo. A Prado Jeep was coming, it was signalled to stop, the complainant noticed three persons, one was a female along with two kids. On searching the Prado Jeep, 90 packets of Charas weighing 90 kilograms were recovered. Same were sealed and such mashirnama in respect of arrest and recovery was prepared at the spot with the signatures of HC Mumtaz Ali and HC Zulfiqar Ali of Police Station Garhi Khairo.
3. ' During recovery and arrest of the appellants they disclosed their names to be Ghulam Sarwar, who was driving the Prado Jeep, Muhammad Khurhseed and Mst. Saima. Mst. Saima and Muhammad Khursheed disclosed that they are wife and husband and two kids are their children.
4. The police submitted challan. The learned trial Court framed charge against all the three appellants, to which they pleaded not guilty, and claimed to be tried.
5. ' During trial the prosecution examined P.W.1 Qurban Ali at Exh.5. He produced Roznamcha entry at Exh.5/A, mashirnama of arrest and recovery at Exh.5/B, F.I.R at Exh.5/C, and Chemical Examiner's report at Exh.5/D. P.W.2 Mumtaz Ali was examined at Exh.6. He is the mashir of recovery and arrest of the appellants.
6. ' The appellants were examined under section 342, Cr.P.C. Appellant Ghulam Sarwar during his examination under section 342, Cr.P.C. Has produced three receipts of TCS at Exhs.8/A to 8/C and he has examined one Nek Muharnmad D.W in his defence. All the three appellants denied the allegations of prosecution. At the conclusion, the learned Special Judge, C.N.S., Jacobabad convicted the appellants as stated above.
7. ' We have heard Mr. Faiz Muhammad Larik, learned counsel on behalf of the appellants and Mr. Ali Raza Pathan, on behalf of the State.
8. ' Mr. Larik, learned Counsel for the appellants, contended that the appellants were falsely implicated by the police and the Charas is foisted upon them by the police in order to show their efficiency. He further contended that the Prado Jeep belongs to one Mansoor Raza of Quetta, but that Mansoor Raza was neither examined during investigation nor during trial by the prosecution.
9. He has relied upon the cases of Zahoor Ahmad Awan v. The State (1997 SCMR 5430 and Jamil Shah v. The State (1997 SCMR 1494) and contended that the prosecution has failed to establish the guilt against the appellants beyond any shadow of reasonable doubt and contended that there are so many material contradictions in the evidence of the two witnesses, who are police officials. He further argued that the defence has succeeded to create doubt in the prosecution case and benefit of such doubt may he extended in favour of the appellants.
10. ' On the other hand, Mr. Ali Raza Pathan, learned State Counsel, argued that the witnesses have no enmity against the appellants. A huge quantity of 90 kilograms of Charas was recovered from the Prado Jeep driven by Ghulam Sarwar and the co-appellants were the companions of Ghulam Sarwar. He strongly supported the impugned judgment and further contended that the learned trial Court has already taken a lenient view and convicted and sentenced the appellants for life imprisonment, though the punishment provided under section 9(c) is death if the quantity of narcotic substances exceeds from 10 kilograms.
11. ' We have considered the submissions of the learned Counsel at the bar and with their assistance we have gone through the evidence.
12. ' P.W.1 Qurhan Ali stated in his evidence that on 23-3-2008 he was posted as S. H.0 at Police Station Garhi Khairo. On the same day he along with HC Zulifqar Ali, HC Mumtaz Ali and PC Manthar left Police Station Garhi Khairo in official vehicle, which was driven by driver PC Manzoor Ahmed, under Roznamcha Entry No,15, at 1630 hours, for patrolling in his jurisdiction. He further stated that when he reached at Railway Phaatak, he received spy information that a Prado Jeep was coming from Quetta for Karachi and Charas is being transported in the said Prado Jeep. Receiving such information he conducted Nakabandi, where at about 1830 hours during Nakabandi a Prado Jeep came, which was signaled to stop, two male and one female along with two kids were sitting in the Prado Jeep. The person who was driving the Prado Jeep disclosed his name to be Ghulam Sarwar son of Achar Khan, by caste Chohan, resident of Bachal Shah Miani, Sukkur. Other person disclosed his name to be Muhammad Khurshed son of Muhammad Wazir, by caste Ara'in and female disclosed her name to be Mst. Saima daughter of Muhammad Akram, wife of accused Muhammad Khurshed Arain and for two kids she disclosed that they are Danish, aged about 3-1/2 years and Seemab, aged 5-1/2 yeaRs, He further stated that he enquired from driver Ghulam Sarwar about the Charas in the Prado Jeep, who after replying evasively lastly disclosed that in a secret box there is Charas, which is to be transported for Karachi. He further stated that he conducted search of the Prado Jeep and found 90 kilograms of Charas and from personal search of Ghulam Sarwar appellant, Rs,1500, his NIC and cover of Registration Book of vehicle; from the pocket of shirt of Muhammad Khurshed Rs,900, his NIC and mobile phone were recovered. Due to non-availability of lady police constable the search of appellant Mst. Samia was not taken.
13. ' In cross-examination, he stated that they held Nakabandi on both sides of road. Before the Prado Jeep in question or other vehicles were also searched. No shop or hotel or houses were situated near the place of wardat. He further stated that PC Manthar arranged for scale from Garhi Khairo.
14. He stated that Charas was in the shape of rods. He further stated that the sample was taken out from the packets and was sealed separately. He denied the allegation that accused Ghularn Sarwar was apprehended by him from Khokhar Larro and Rs,76,000 were taken away from him on 22-3-2008. He denied the suggestion that accused Ghulam Sarwar was dealing with the cattle business, sale and purchase. He admitted that registration papers of the Prado Jeep were found in the name of Mansoor Raza. He denied the suggestion that Muhammad Khursheed and Mst. Saima, his wife, along with children were standing at Garhi Khairo Larro for boarding in bus to go to Punjab and were arrested on 22-3-2008.
15. ' P.W.2 Mumtaz Ali stated in his evidence that on 23-3-2008 he along with S.H.O Qurban Ali Khokhar, HC Zulfiqar and PC Manthar left Police Station Garhi Khairo in official vehicle along with driver PC Manzoor Ahmed, under Roznamcha Entry No,15, at 1630 hours, for patrolling purpose in the beat of Police Station Garhi Khairo. He stated that when they reached at Railway Phaatak, they received information through one spy that Charas is being transported to Karachi from Quetta in a Prado Jeep. On such information complainant Qurban Ali arranged Nakabandi and at about 1830 hours one Prado Jeep came, which was signalled to stop and when the vehicle stopped, they noticed that two male and one female along with two kids were sitting in the Prado Jeep. On enquiry, driver disclosed his name as Ghulam Sarwar son of Achar Khan Chohan. Second male member disclosed his name to be Muhammad Khurhseed son of Muhammad Wazir Arain and for female he disclosed that the name of the lady is Mst. Saima, who is his wife and two children Danish and Seemah are his children. They enquired from the driver about the availability of Charas, but he after evasive replies disclosed that in a secret box there is Charas. They recovered the Charas, Rs,1500 from appellant Ghulam Sawar, his NIC and Registration Book of the Prado Jeep; from Muhammad Khursheed Rs,900, his NIC and mobile phone were recovered. The Charas was weighed, which became 90 kilograms. Each packet of Charas was of one kilogram, total weight of the Charas became 90 kilograms and 10 kilograms were separated for chemical examination and other Charas was sealed separately at the spot. Mashirnama of arrest and recovery was prepared and he signed it along with HC Zulfiqar Ali and HC Mumtaz Ali. He stated that his 161, Cr.P.C. Statement was recorded by S.H.O Qurban Ali.
16. ' In cross-examination, he stated that they visited Panjguli Chowk, Saifullah Shakh, Jacobabad Road, Petrol Pump of Dad Muhammad Khan and then Railway Phaatak. He stated that they held Nakabandi and during Nakabandi some vehicles were also searched. He stated that some houses are situated at some distance from the place of wardat. PC Manthar All was sent for arranging scale from Garhi Khairo. He stated that no private person was available at the place of wardat. He stated that Charas was in the shape of rods. Packets of Charas were counted. He denied the suggestion that the appellant/accused Ghulam Sarwar was unlawfully confined at Police Station Garhi Khairo on 22-3-2008. He also denied the suggestion that Rs,76000 were robbed from accused Ghulam Sarwar. He also denied the suggestion that accused Muhammad Khursheed along with his wife Mst. Saima and two children were arrested at Khokhar Larro, Garhi Khairo, where they were standing for boarding a bus for Punjab. He also denied the suggestion that they misbehaved with Mst. Saima which resulted in quarrel.
17. ' The learned Counsel contended that the sample was sent to the Chemical Examiner with delay and he quoted rules 4 and 5 of the C.N.S. Govt. Analysis Rules, 2001, but we find that no bar is placed to the Investigating Officer to send the samples beyond 72 hours of the seizure. In the case of Gul Alam v. The State, NLR 2010 Criminal 59, the Hon'ble Supreme Court has held as under:- "The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the petitioner that the property was tampered with during the process of transit or the remaining property was not 'charas'. It was for the petitioner to have taken such plea before the Trial Court but the petitioner did not do so.
18. However, we have examined the Chemical Analyzer's report and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the argument of learned counsel for the petitioner is not sound."
19. After going through the evidence of both the P.Ws., we see no material contradictions in the evidence. Both the witnesses are unanimous on the point of arrest, recovery of Charas and Prado Jeep. The witnesses had no enmity with the appellants to connect them in a false case by foisting such a huge quantity of Charas of 90 kilograms. During these days the narcotic dealers use to accompany with them ladies and children so that they may not be suspected and usually in the vehicles ladies and children are sitting. The police officials or all the State functionaries' avoid to search such vehicles. The learned Counsel has failed to point any material contradiction in the prosecution evidence, which create dent in the prosecution case. We have examined the Chemical Examiner's report, which is in positive. There is no delay in sending the Charas for chemical examination on behalf of prosecution. We have observed that there was no need for the complainant to foist a huge quantity of Charas and a valuable Prado Jeep upon the appellants.
20. After going through the evidence, we find no illegality or irregularity in the impugned judgment, which is well-reasoned. The operative part of the impugned judgment passed by the learned trial Court is reproduced below:-- "There is no reason with the Police to involve the present accused in this case falsely by making substitution of the accused, which indeed is a rare phenomenon. In end it was contended by learned Counsel for the accused that the accused could only be made liable for the charas which has been subject to chemical examination. Samples were taken out from each of the packet of the charas so secured; therefore, the accused could be made liable for whole of the charas secured from them. Samples even otherwise are parts of rest of the recovery.
21. ' The simple plea of innocence, which the present accused have taken, coupled with the evidence of DW Nek Muhammad deserve to be ignored as an afterthought."
22. Consequently, we dismiss all the three appeals, which are arising out of the same judgment. The appellants are in jail. They shall serve the sentences awarded to them. The benefit of section 382-B, Cr.P.C. Has already been extended in their favour by the learned trial Court.