1. ' Anwar Hussain, J.--This Appeal is directed against the impugned Judgment dated 20.05.2010, passed by Special Judge, (CNS). Larkana, whereby appellant was convicted under Section 245-(2), Cr.P.C. for the commission of offence punishable under Section 9 (c) of Control of Narcotic Substances Act, 1997, and sentenced to undergo Rigorous Imprisonment for 05 (Five) years and to pay fine of Rs, 50,000/- (Rupees fifty thousand) or in ease of default to further undergo Simple Imprisonment for three (03) months more. The benefit of Section 382(B) of, Cr.P.C., was extended to the appellant.
2. 2.The case of the prosecution is that AS1. Ghulam Asghar Tunio, along-with Police Party, including Mashirs viz. HC-Ayaz Hussain and PC-Muhammad Ilyas, duly dressed and armed with official weapons, left the Police Station on Official Vehicle No, SP-2036, vide Entry No, 5, dated 27.11.2006, started patrolling; while they were at Ataturk Tower, received spy information that one person is selling charas near Veterinary Hospital, on link road towards Baqapur, so they proceeded and reached over there at about 1400 hours and saw a person standing having a shopper in his hand, who on seeing Police vehicle tried to run away; the Police Party after encircling, captured him alongwilh shopper, who disclosed his name as Gulshan son of Allah Bux. i,e, the appellant; in presence of said Mushirs the Police opened the shopper, which contained five packets of Charas; on spot the same were weighed, and found each packet of one kilogram weight, in total five kilograms, out of which one kilogram Charas on spot, was separated/scaled and the rest of Charas was also sealed separately. The appellant was asked about the Charas, who disclosed that appellant was standing for selling the same; on bodily search two currency notes of Rs, 50/- each (i,e, Rs, 100/-) were also recovered from the appellant; as such he was arrested in eresence of said Mashirs; the mashirnama was prepared and case was registered against the appellant.
3. 3.The Investigation . Officer, after completing the Investigation submitted Challan in the Court of Special Judge for CNS, Larkana. Thereafter the learned Trial Judge framed the Charge against the appellant, who pleaded not guilty and claimed trial.
4. 4.So the prosecution examined P.W-1, Complainant Ghulam Asghar, ASI, at Exh.7, who produced Entry of Departure as Exh.7-A. Mashirnama of Arrest and Recovery at Exh.7-B, Entry of Arrival as Exh.7-C and FIR at Exh.7-D, PW-2, Ayaz Hussain, HC/Mashir at Exh.8, PW-3, Sardar Ali, I.O. at Exh.9, who produced Chemical Examiner Report who sent the sealed Charas of One kilogram for Chemical Examination whereby it was confirmed that on examination the substance was found of to be Charas of One kilogram weight at Exh.9-A, and prosecution closed their side at Exh.10.
5. Thereafter. Statement of appellant under Section 342, Cr.P.C. was recorded at Exh.11, who denied the allegation and offered to appear on oath and produce witnesses; as such appellant examined himself at Exh.12. and examined two Defence Witnesses namely Mehrab and Nazeer Muhammad, at Exh.13 and 14, respectively, and they were cross-examined by S.P.P., on behalf of State; the appellant deposed that he is farmer by profession and cultivate the lands of Peeral Abro, who has dispute with Sharif Abro, and that Sharif Abro, has conveyed a message to the appellant not to cultivate the land of Peeral Abro, otherwise he will face the consequences, but the appellant refused the same, so in presence of the said Defence Witnesses, who were appellant's colleagues, the appellant was arrested and booked in this case by the Police at the instance of said Sharif Abro.
6. 5.The said learned Trial Court after hearing arguments and going through the evidence and record, by impugned Judgment convicted the appellant as mentioned herein-above.
7. 6.The learned Counsel for the appellant contended that the Complainant, who was ASI, was not competent, under the CNS Act, 1997, to arrest the culprit and recover the Narcotics Substance there is delay, on the part of Investigation Officer, in sending the Charas to the Chemical Examiner and that too without any explanation only one Kilogram Charas was sent to the Chemical Examiner Originals of the Roznamcha Entries, were not produced rather photocopies of the same were produced, and there is over writing in the Arrival Entry as to the timing of arrival; there are other material contradictions independent witnesses has not been associated. Learned Counsel further contended that the appellant has been falsely implicated at the instance of one Sharif Abro the entire case .has been planted against the appellant, who is innocent and as such prayed for the acquittal and the learned Counsel relied upon 2004 YLK 1303, 1998 P.Cr.L.J. 2008 (DB), 1999 PCr.LJ 391, PLD 2001 Peshawar 152 (FB), 1997 SCMR 1494, 2012 SCMR 577, 2011 SCMR 820, 2012 P.Cr.L.J 1927 (Kar.) and 2012 MLD 1763 (Kar.).
8. 7.Whereas the learned APG, submitted that appellant has been arrested on spot found in possession of Charas and the prosecution has proved their ease beyond reasonable doubt against the appellant, so there is no illegality or infirmity in the Impugned Judgment and further submitted that whole substance recovered charas was not to be sent for the Chemical Examiner and the application of Section 103, Cr.P.C. has been excluded in the cases under the CNS Act, 1997 and relied upon 1995 SCMR 1793, PLD 2004 SC 663, 2005 SCMR 1958 and 2008 MLD 314.
9. 8.We have considered the respective submissions advanced from both the sides, perused the record with their able assistance and gone through the case laws relied upon.
10. 9.We have observed that prosecution in order to prove the guilt of the appellant has examined the Complainant/ASI, PW-1 (Exh.7), who in presence of the Mashirs had apprehended the appellant, in day time from the road and on spot recovered five packets of Charas, one kilogram each, in total five kilograms, out of same one kilogram was separated and sealed and rest of the same was also sealed separately; arrested the appellant in presence of Mashirs; registered the case; produced the Entries of Departure and Arrival (Exh.7-A and 7-C. respectively), the Memo of Recovery and Arrest (Exh.7-B) and FIR (Exh.7-D); examined PW-2. HC/Mashir viz. Ayaz Hussain (Exh.8), who supported the prosecution case and Investigation Officer, viz. Sardar Ali, SIO (Exh.09), who produced Chemical Examiner's Report (Exh.9-A). which confirmed that the examined substance was Charas of one kilogram and they all were cross-examined by the appellant's Counsel, but the appellant side have not been able to shaken them rather no material contradictions or any ill-will or enmity of P.Ws. were brought on record.
11. 10.As to the contention of learned counsel for appellant that there is violation of Sections 21 and 22 of CNS Act, as Complainant was the ASI and not the Inspector, the same is of no substance, as the Apex Court in the case of Muhammad Younus v. Mst. Parveen (2007 SCMR 393), has held that in the extreme urgency/prompt action it is not absolute rule to follow the Sections 21 and 22.
12. Moreover, in the case. of Fida Jan v. The State (2001 SCMR 36= NLR 2001 Cr. 43), the CIA raided and recovered the Charas and the conviction and punishment as awarded, was maintained by the Apex Court.
13. 11.So far as .the contention that private persons have not been associated as Mashir is concerned, the same is misconceived in view of the Section 25 of the CNS Act, 1997 whereby the Section 103, Cr.P.C. has been excluded from its application in Narcotics cases and in support of the same reference is made to the case of Zulfiqur Ahmed v. The State (2006 SCMR 800) and of. Muhammad Khan v. The State (2008 SCMR 1616).
14. 12.Moreover, the appellant has not shown any enmity with the prosecution witnesses, so the evidence of the police cannot be discarded simply on the ground of violation of Section 103, Cr.P.C. which is not mandatory and in support of the same reliance is placed on PLD 2009 S.C. 39 Tarique Mehmood v. The State and 2008 MLD 314, (DB-Kar) Abdul Majeed v. The State.
15. 13.And as to the objection on behalf of the appellant that there is delay in sending the Charas separated as sample, to the Chemical Examiner, for answering the same the reliance is placed on 2011 SCMR 624 Gul Alam v. The State, PLD 2009 S.C. 39, Tariq Mehmood v. The State and 1993 SCMR 149 = NLR 1993 SD 192, Sherzada v. The State. And in view of the same the delay in sending the incriminating article to the Chemical Examiner for Report, cannot be treated as fatal and minor lapses in investigation do not affect the validity of Trial, particularly, when the defence has not cross examined the prosecution witnesses in respect of the same. The objections of the appellant as to non-production of original Departure and Arrival Entries and overwriting over the Arrival Entry are concerned, we have observed that the while attested copies of the same were exhibited, no such objection was taken at that time and even other vise the overwriting as to the arrival time in the entry is not very much material as the same would be an account of inadvertence and even otherwise, the same is in consonance with the time mentioned in the FIR, and as such the same does not create doubt to the case of prosecution.
16. 14.That as per Section 29 of the CNS Act, 1997, there is a presumption of possession of Narcotic/Contraband Substances against the accused prosecuted unless the same is rebutted by way of major contradictions, material irregularity or illegality, mala fide and proof of enmity, so the case stand proved against the appellant to the hilt leaving no room to doubt the veracity of the Statements of P.Ws. who were not at all questioned about any ill will or animus with the appellant for his false involvement in the matter. Moreover, the appellant has simply denied the prosecution allegation in his Statement under Section 342 Cr.PC and have not been able to disprove anything in respect of his defence or malady on the part of prosecution, but mere simple denial of the charge and pleading innocence that too without any cogent and convincing evidence does not entitled the appellant for his acquittal. Reliance is placed on the case of Muhammad Noor v. The State (2010 SCMR 927).
17. 15.But following the dictum, in the case of Ameer Zaib v. The State (PLD 2012 S.C. 380) and as per the sentencing guidelines contained in the case of Ghulam Murtaza v. The State (PLD 2009 Lahore 362 (FB), with reference to latest announcement of Apex Court in the case Abdul Hameed v. The State (2016 SCMR 707), we have observed that in this case the prosecution as per record allegedly recovered five packets, containing the Charas of one kilogram each i,e, Charas of five kilograms, out of which one consolidated sample was taken, which sample weight one kilogram, but since it has not been shown that separate samples from five each packets of Charas have been separated and secured, so only one kilogram of Charas was secured and sent to the Chemical Expert, to be considered as recovered substance and appellant could have been convicted and punished for the same accordingly, resultant only one kilogram of Charas said I have been recovered from the appellant, confirmed as per Chemic Examiner's Report, and as such the conviction of the appellant under Section 9(c) of the Control of Narcotic Substance Act, 1997, i converted into an offence under Section 9(b) of the said Act, and hi sentence is reduced to Rigorous Imprisonment for One year and Nin Months and Fine of Rs, 13,000/- (Rupees Thirteen Thousand only) o in default thereof to undergo Simple Imprisonment of 04 (four months) and 15 (fifteen) days. The Benefit under Section 382-B of Cr.P.C., is extended to the appellant.
18. 16.In light of above discussions with reference to the Judgments of the Apex Court, we find that the prosecution has proved the case against the appellant and this Appeal is dismissed with the above modification.
19. 17.The appellant is called absent, none present on his behalf and Judgment announced. Let copy of this Judgment alongwith R&Ps be sent to the Trial Court alongwith surety papers for procuring the attendance of the appellant and sending him to the Central Prison. Larkana, to undergo the remaining sentence.