MIR HAZAR KHAN KHOSO, J: -- This appeal is directed against the judgment, dated 13-10-1991 passed by the learned Sessions Judge, Karachi South, whereby the appellant was convicted Abr offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sentenced to suffer imprisonment for life, twenty stripes and fine of Rs.10,000, in default of payment of fine to undergo R.I: for two years more with benefit under section 382-B, Cr.P.C.
2. It is case of the prosecution that on 5-6-1989 at about 11-30 p.m. F.I.O. Raees Ahmad alongwith other staff of P.N.C.B., Defence Karachi. Found the appellant carrying a bag in his right hand on Sharah-e-Baidil, near Chowrangi Shirin Jinnah Colony. He was apprehended and disclosed his name as Gul Zaman son of Sardar Khan. Raees Ahmad conducted search of the abovesaid bag in presence of F.I.O. Muhammad Khan and S.I., Jehangir Khan. It was found to contain ten white cloth bags. On opening the bags one kilogram of heroin was found in each bag, Five grams of heroin was taken from each bag for the purpose of sample. The samples as well as the material were sealed separately. F.I.R. No.14/89 was registered at P.N.C.B. Police Station. Defence for offence under Articles 3 and 4 of the Order. The samples were sent to National Institute of Health for examination.
The report of Dr. F.R.Y. Fazli, Chief National Institute of Health, Islamabad, is in positive. However, after usual investigation the appellant was challaned for offence under Articles 3 and 4 of the Order before the Court. The case came for trial before the learned Sessions Judge, Karachi South, where the appellant did not plead guilty to the charge framed under Article 4 of the Order and claimed trial.
3. In support of the case the prosecution examined P.W:1 Muhammad Khan, the member of the party, who attested the recovery memo, and sealing of the parcels, P.W.2 Gulfam Husain, member of the party, attesting witness to the inventory and sealing of the parcels and P.W.3 Races Ahmad, head of the party, who secured heroin from the appellant, prepared Mashirnama and. Sealed the parcels.
4. In his statement recorded under sections 342, and 340(2), Cr.P.C. The appellant denied the allegation and claimed innocence. 1n his statement recorded under section 340(2), Cr.P.C. Has taken following stand:-- "I am timber merchant. About three months prior to my arrest I had brought timber from Bajore to Karachi, which timber I kept with Muslim Timber Mart in Haji Camp. I was arrested on 3-6-1989 after Maghrib prayers from Sabzi Mandi when I was sitting in Baloch Hotel at Sabzi Mandi No.2. At that time D.Ws. Mishal, Khan Badshah and Shahjehan were also sitting with me there: I was sitting with the said persons in the said hotel. One Pathan in civilian clothes came to the hotel and enquired as to who was Gul Zaman, I replied in the affirmative to which he told me that I was being called by some one outside the hotel. I accordingly accompanied him and he took me to a bye lane where I saw three vehicles in which about 7 policemen were sitting. I was told to sit in one of the vehicles as I was to be taken to police station. At that time many, people came including abovesaid persons who enquired from the policemen as to why I was being taken to police station to which policemen replied that I would be released soon after being taken to police station and there was nothing extrordinary. On reaching at police station I was put into the lock-up. On the next day in the morning I saw Abdul Rahim, Ghulam and Shahzada with whom I had enmity were there at the police station. After two days, after my arrest 2/3 persons of Abdul Rahim came and then Abdul Rahim, Shah7ada and Ghulam were released and I was involved in this case. My man Mushil came to meet me but he was not allowed by police, then I.O. Of this case attached my timber lying with Muslim Timber Mart, Haji Camp. Then I.O. Of this case removed my timber from there. I have been implicated in this case due to my enmity with Abdul Rahim and others."
In defence D.W.2 Mushang, D.W.3 Khan Muhammad, D.W.4, Sher Muhammad and D.W.5 Allah Wasaya were examined. However, the learned. Sessions Judge did not believe the defence plea and while relying on the prosecution evidence convicted the appellant for offence under Article 4 of the Order and sentenced him for the same as mentioned hereinabove. Hence this appeal.
5. Prof. M. Ibrahim Abbasi, Advocate, appeared for the appellant and Mr. Abdul Ghafoor Mangi, Assistant Advocate-General Sindh, appeared for the State.
6. In support of the appeal the learned counsel for the appellant has taken following grounds:---
(i) The prosecution story is concocted one.
(ii) The case is of two versions one given by the prosecution and the other by the appellant, hence one in favour of the appellant be 'believed.'
(iii) It is doubtful whether samples were taken from the lot and sent for examination.
(iv) The question regarding samples was not put to the appellant in his statement under section 342, Cr.P.C.
(v) The report of the Chief National institute of Health, Islamabad, is not admissible as it is not by a qualified person.
7. The learned Assistant Advocate-General Sindh vehemently controverted the contentions raised by the learned counsel for the appellant and submitted that the prosecution has proved its case beyond reasonable doubt, hence the conviction and sentences of the appellant be maintained.
8.It may be pertinent to observe that there are minor contradictions regarding the time of leaving of the party for patrolling duty. No mathematical calculation in respect of the same can be made while deciding a criminal case. Such mathematical calculations of the time have not been approved by the Courts. The objection raised in that behalf by the learned counsel for the appellant has, therefore, no force. It does not at all affect the recovery of the heroin from the appellant at the relevant time.
9. Regarding concoction of the case the appellant has said that he was arrested on 3-6-1989 from Baloch Hotel, Sabzi Mandi, in presence of the defence witnesses and was then roped in this case. In support of his version he has produced defence witnesses. On the other hand it is case of the prosecution that he was arrested on 5-6-1989 at 11-30 p.m. From Shahrah-e-Baidil near Chowrangi Shirin Jinnah Colony. Keeping in view the, evidence of the prosecution and the defence version it may be observed that the prosecution witnesses had no grudge or animosity against the appellant for his false implication. A huge quantity of ten kilograms of heroin was recovered from the appellant. Such huge quantity could not be foisted for the purpose of concoction. Little more "than ten grams of heroin was sufficient for false implication. Further, it may be observed that during cross-examination it was suggested to witness Muhammad Khan that the appellant was arrested alongwith Abdul Rahim, Sher Nawaz and Ghulam Moazmeen. After two days of their arrest 2/3 persons of Abdul Rahim came at the police station and Abdul Rahim, Sher Nawaz and Ghulam Moazmeen were released and he was involved in this case. His case in 340(2) statement is that on next day he saw Abdul Rahim, Ghulam and Shahzada, with whom he had enmity. The contradictory stand of the appellant reflects on the veracity of the appellant and his defence witnesses. The learned trial Court also has found the story advanced by the prosecution true and defence as a false one. We are also inclined to affirm the decision taken by the learned trial Judge regarding the implication of the appellant for being in possession of huge quantity of heroin. The second ground taken by the learned counsel for the appellant thus fails.
10. Witnesses Muhammad Khan, Ghulam and Races Ahmad were unanimous regarding recovery of the heroin from the appellant and also taking the samples therefrom. However, the learned counsel for the appellant submitted that in tiny scale a huge quantity of heroin could not be weighed. This objection appears to be superfluous. It is in the evidence of the witnesses that the heroin was weighed and samples were taken therefrom. Hence no adverse presumption can be drawn on conjectures or otherwise. The ground has no force.
11. It may be pertinent to observe that in 342, Cr.P.C. Statement the appellant was definitely put a question that five grams of heroin was taken from each packet and sealed separately in parcels.
The compliance of section 342, Cr.P.C. As such was made. However, it was not necessary that the remaining samples be also produced before the Court and put to the appellant. The objection as such has no force. '
12. Under section 510, Cr.P.C. The reports of the Chemical Examiner, Serologist under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government are admissible in evidence without examining the witness. For the sake of convenience the section is reproduced hereunder:-- "510. Report of Chemical Examiner, Serologist, etc.-- Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, or any Serologist, finger-print expert or fire-arm expert appointed by Government, or of the Chief Chemist of the Pakistan Security Printing Corporation Ltd., upon any matter or thing duly submitted to him for examination or analysis and report in the course of proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may, if it considers necessary in the interest of justice, summon and examine the person by whom such report has been made."
The trial Court did not consider necessary, to call expert as witness. Even the defence did not request in that respect.
13. The report of the Chief, Dr. F.R.Y. Fazli, was, indeed brought on the record without any objection raised by the learned defence counsel before the trial Court. At this stage before us no request was even made by the defence to examine him as a witness. In such cases it is the duty of the defence to request the Court for calling the expert as witness. In failure thereof we do not find any benefit to be extended in favour of the appellant.
14. It was then contended by the learned counsel for the appellant that only nine reports were produced before the Court but the tenth one not. We have seen the forwarding letter sent by the expert, which mentions about ten reports, but on the record there are nine only. Such non- production of one report of the expert would not be fatal to the prosecution case regarding the material recovered from the appellant.
15. However, we have gone through the evidence of witnesses produced by the prosecution and the defence. As earlier observed no animosity has been shown by the defence against the prosecution witnesses. In late hours of the night procuring of witnesses from the public was not possible. Even otherwise in narcotics cases people from public for one or the other reason avoid to appear as witnesses. Thus evidence of the Pakistan Narcotics Control Board's official is as good as that of any other person from the public, unless some inherent defence are pointed out by the defence. No such inherent defect was pointed out in the evidence of the abovesaid three prosecution witnesses. Their evidence as such is confidence inspiring, which has been rightly relied upon by the learned trial Judge. We have gone through the judgment of the learned trial Judge. He has accepted the prosecution version properly and rejected the defence version rightly. No material was produced before us to dislodge the elaborate judgment of the learned trial Judge in appeal. The appeal as such stands dismissed. However, no mitigating circumstance was even shown to reduce the sentence also, which is maintained accordingly.
N.H.Q./706/FSC