1. JUDGMENT SAJJAD ALI SHAH, J.---The appellant has impugned the judgment dated 10-3-2004, passed by the learned Special Judge, Control of Narcotic Substances. Hyderabad, in Special Case No.10 of 2002, whereby the appellant upon recovery. Of 20 kilograms of heroin powder was convicted for an offence under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life and fine of Rs.500,000 and in case of nonpayment of fine to further suffer' R.I for three years.
2. Briefly, Sub-Inspector Naeemuddin of A.N.F. On 1-2-2002 lodged an F.I.R. That on spy information that a person is transporting heroin, he along with his staff left the Police Station and when they reached Hala Naka at about 2100 hours on the pointation of spy/informer a person having black coloured regazine bag waiting for bus was apprehended. People present were asked to act as mashir and on their refusal EC Manzoor Ali and EC Abdul Hameed were nominated as mashirs. The person apprehended disclosed his name as Nadir Khan. From his bag 20 cloth bags containing heroin powder were recovered, each bag, weighed 1 kilogram. Consequently, 100 grams of heroin powder was taken out from each bag and 20 samples of 100 grams each were sent to Chemical Examiner and consequently the appellant was arrested.
3. Formal charge was framed to which the appellant pleaded not guilty and claimed regular trial.
4. The prosecution in order to prove its case examined complainant Sub-Inspector Naeemuddin, who produced Roznamcha Entry, mashirnama of arrest and recovery, report of Chemical Examiner, and thereafter examined P.W Abdul Hameed, who acted as mashir, and closed its side. The statement of the appellant under section 342, Cr.P.C. Was recorded in which the appellant declined to be examined on oath nor produced any evidence in his defence. The trial Court consequently upon hearing the parties passed the impugned judgment.
5. Learned counsel appearing for the appellant firstly contended that incident took place on 1-2-2002 whereas samples were sent to Chemical Examiner on 4-2-2002 and on account of such delay the appellant could not have been convicted. It was next contended that since the complainant Sub- Inspector Naeemuddin has himself acted as Investigating Officer therefore, the entire proceedings are vitiated and the appellant has earned the acquittal. It was further contended that the F.I.R. As well as the statement of complainant reflects that 2000 grams of heroin powder were sent for chemical analyzation whereas Chemical Examiner's report reflects that the gross weight of the samples received was 1982.250 grams whereas the net weight was 1959.400 grams and consequently on account of such anomaly the appellant could not have been convicted. In the end learned counsel has placed reliance on the judgment of Supreme Court in the case of Niazuddin v. The State (2007 SCM R 206) whereby the Apex Court had reduced the sentence from 10 years to 6 years and contended that a lenient view be taken as the appellant being 59 years of age is behind the bars for the last 21 years and 9 months (including remission of 12 years 6 months) and his sentence be reduced to one already undergone. Per learned counsel the appellant is ready to give up this appeal by not pressing it if this Court while dismissing the appeal and maintaining conviction reduces the sentence to one already undergone.
6. On the other hand, Mr. Amjad Ali Sahito learned Special Prosecutor for A.N.F. Contends that 20 Kilograms heroin was recovered from the possession of the appellant and the appellant being drug paddler is not entitled to any concession. It was next contended that the incident had taken place on 1-2-2002 whereas samples were received by the Laboratory at Karachi on 4-2-2002 well within the time prescribed under the rules therefore, there is no delay at all in sending the samples.
7. As to the contention that the complainant and Investigating Officer was, the same, Mr. Amjad Ali Sahito while placing reliance on the judgment of the Supreme Court in the case of Zafar v. The State (2008 SCMR 1245) contends that there is no bar on the complainant being Investigating Officer. As to difference in weight, it was contended that there were 20 samples of 100 grams each and total 2000 grams were sent for chemical examination and according to their weighing scale they were found 1982.250 grams which make hardly 1 gram difference in each packet, which can even be an error in the weighing scale.
8. We have heard the learned Counsel for respective parties and have perused the record.
9. As to the first contention the scrutiny of record reflects that the Narcotic Substance was recovered from the appellant on 1-2-2002 at 2100 hours at Hyderabad and it was received in the Laboratory at Karachi on 4-2-2002 therefore, the delay, if any, is less than 72 hours and Sub-Rule (2) of Rule 4 of Control of Narcotic Substances (Government Analyst), Rules 2001 provides that samples be sent for chemical examination within 72 hours therefore, the argument is without force. Even otherwise the Supreme Court in the case of Ali Muhammad v. State 2003 SCM R 54 has held that the delay in sending the sample of narcotic substance for examination by Chemical Examiner would not be discredited to recovery.
10. As to the next contention regarding the complainant being Investigating Officer A the Apex Court in the case of Zafar, supra, has held that Police Officer was not prohibited under the law to be a complainant, if he was a witness of an offence and such officer could also be an Investigating Officer, so long as it did not prejudice accused persons.
11. As to the case of Niazuddin, supra, wherein apex Court upon recovery of 5 kilograms heroin has reduced the sentence from 10 years to 6 years, even if this dicta is applied even then the sentence awarded to the appellant is not on high side as the recovery of heroin as well as sentence both are more by four times. As to error in weighment Mr. Sahito is right that the difference in quantity sent and received only 1% which could be error or difference between the two scales. Even otherwise, the apex Court in number of cases including the case of Ghulam Qadir v. The State (PLD 2006 Supreme Court 61) has held that while deciding cases of like nature the approach of the Court should be dynamic and the drug paddlers should not be benefited from A technicalities.
12. In view of what has been discussed above no case for interference is made out nor we are inclined to reduce the sentence. Resultantly, the appeal is dismissed..