' These are two appeals, bearing Nos.43/K and 47/K of 1992. Both the appeals have arisen out of a common judgment, dated 15-4-1992, passed by learned IInd Additional Sessions Judge, Karachi East, whereby he convicted both the appellants under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called "the said Order") and sentenced to suffer R.I. For a period of five years with benefit of section 382-B, Cr.P.C., and whipping numbering fifteen stripes to each of the accused/appellants namely, Zafarullah son of Abdul Rasool and Muhammad Saleh son of Haider Bakhsh. It is, thus, intended to dispose of the aforesaid two appeals by this common judgment.
2. The accused/appellants Muhammad Saleh and Zafarullah and co-accused Saida Jan, were challaned by Police Station Gulzar-e-Hijri under Article 3/4 of the said Order, in Crime Case No,212 of 1986, but co-accused Saida Jan is still absconder.
3. The case of the prosecution, as revealed in the F.I.R., is that on 4-7-1986 S.I.P. Dawood Akbar, alongwith his subordinate staff, was on patrolling duty in the area and when reached at Taj Hotel in Hassan Colony Karachi Suhrab Goth, at 4-30 p.m. They found a Toyota Corrola Car bearing No,640-048 coming from Hassan Colony. The car was being driven by the accused/appellant Muhammad Saleh son of Haider Baksh. The complainant S.I.P. Dawood Akbar, signalled the car to stop but the driver of the said car (Muhammad Saleh) after stopping the car tried to reverse it, which suspected the complainant. The complainant with the help of P.Ws. Nazar Gul, HanzaiGul succeeded in getting the car, stopped, but soon after one of the culprits, who was sitting on the back seat of the car, succeeded in making his escape good. However, the driver was arrested. The car was searched and a black bag was found lying on front seat, having mark of Japan Echolae in English language. The bag was opened in presence of witnesses and ten white cloth bags were found therein. In those bags it was found that heroin was packed, and each bag was containing a weight of about one kilogram and thus having a total quantity of ten kilograms heroin, which was recovered from the said bags. One gram each was separated from those bags, as sample, for sending the same to the Chemical Examiner. The sample as well as the main quantity were sealed separately. The driver, Muhammad Saleh, disclosed the name of his other companions as Zafarullah son of Abdul Rasool. Such Mashirnama of recovery of .Heroin powder and also arrest of the accused/appellant was prepared on the spot. The accused driver, case-property and the car were brought to the police station and a case was registered. The statements of both the Mashirs Nazar Gul and Hanzai Gul were recorded. Accused/appellant Zafarullah was arrested by Town Police Khairpur on 9-11-1986 in another case under Article 3/4 of the said Order, in Crime Case No,290 of 1986. His custody was handed over to Police Station, Gulzar-e-Hijri on 24-11-1986. The accused Saida Jan was declared as absconder on 15-2-1987 and the case was ordered to be proceeded against him under section 512, Cr.P.C. Charge was framed against the accused, the appellants herein, on 10-3-1987.
4. The prosecution, in order to prove the charge, examined P.W.1 Dawood Akbar, S.I.P. Police Station Gulzar-e-Hijri, P.W.2 Sher Muhammad Awan, Head Constable, P.S. Gulzar-e-Hijri and P.W.3 Ghulam Samdani Pathan, Inspector, P.S. Aram Bagh, P.W.4 Muhammad Gul Pathan, cloth merchant, P.W.5 Shawang Gul, cloth merchant, P.W.6 Hazara Khan Afridi, Taxi Driver and P.W.7 Muhammad Ayub, S.I.P (S.H.O. New Town). Asif Hussain, Police Constable, P.S. Gulzar-e-Hijri was examined as Court witness.
5. The statements of the appellants Muhammad Saleh and Zafarullah were recorded under section 342, Cr.P.C. They declined to make statement on oath, as required under section 340(2), Cr.P.C. And also declined to produce any witness in defence.
6. Mr. Nuruddin Sarki, learned counsel for the appellant Muhammad Saleh in Criminal Appeal No,47/K of 1992 confined to the raising of the following pleas in support of his appeal:--
7. Firstly, it was nowhere stated that the contraband, alleged to have been recovered in the case, was weighed and found to be ten kilograms. True, the prosecution witnesses, the I.O. And the Mashirs have stated the weight was ten kilograms approximately but no question as to the weight was put to the witnesses in cross-examination. As such, total weight of the contraband 10 bags, containing one kilogram each, stands proved to be ten kilograms approximate.
8. Secondly, the learned counsel submitted that as per Chemical Examiner's report, Exh.9, one sealed packet was sent by the S.H.O., P.S. Gulzar-e-Hijri on 8-9-1986, as per his letter dated 7-9- 1986, by the hand of P.C. Taj Muhammad. The incident took place on 4-7-1986. It is thus not known where the sample remained for about two months. The learned counsel thus submitted that on account of delay in sending the sample, no reliance can be placed, on the report of the Chemical Examiner. Reliance was placed by the learned counsel on Farooq-ur-Rahman v. The State 1992 MLD 349, where the learned Single Judge of the Peshawar High Court observed that:-- "There has also been a delay of one month in sending the contraband to the Chemical Examiner.
The contrabands were allegedly recovered on 12-5-1987 which were received by the Chemical Examiner on 12-6-1987. Nazif Shah, S.H.O. (P.W.3) did not know where for one month the specimen were kept. The Moharrir to whom the specimens were given was not produced as witness in the case. I am of the view that no importance can be given to this report."
9. To appreciate the above plea, it is beneficial to refer to the evidence that has come on record in this respect. P.W.1 Dawood Akbar (Exh.6) stated in his examination-in-chief that-- "I had despatched the samples of the heroin powder to the Chemical Examiner for examination and report."
' As per note, the sample packet was unsealed in the Court and the witness stated-- "I see, it is the same, which I had sent to the Chemical Examiner and produce the same as Article `A'."
' In cross-examination the witness further stated that-- "1 handed over samples and heroin to the I.O. Of this case Ghulam Samdani, Inspector."
' The witness further stated that-- "It is correct to say that just after lodging F.I.R. Of this case I handed over investigation to Inspector Ghulam Samdani."
' The witness also stated that Murtaza was the Head Moharrir of the Police Station Gulzar-e-Hijri, at the time of incident. Inspector Ghulam Samdani, P.W.3 (Exh.11) was also examined as a witness and in his examination-in-chief, on the point, at issue, he stated as under:-- "I sent heroin sample for examination to Chemical Examiner." He further stated in the cross- examination that-- "The case-property was handed over to Head Moharrir on the day of its recovery for safe custody and also for sending the position (sic) perhaps, powder) seized as sample for chemical analysatiun."
' The witness, however, did not remember the name of Head Moharrir to whom the case-property was entrusted for sending the same to the Chemical Examiner. He, however, stated that-- "The case-property was handed over to him alongwith seizure memo., as the requisite (sic) from the concerned D.S.P. Was then to be obtained. I do not remember the date on which permission was obtained as it was solely gole (sic) of the Head Moharrir."
' He further stated that at the time when challan was submitted, the samples were sent to the Chemical Examiner.
10. It appears that P.W.1 Dawood Akbar, brought the case-property and handed over the same to Inspector Ghulam Samdani P.W.3, who, in turn, passed on the same to the Head Moharrir, Murtaza, for safe custody. The learned counsel stressed that Murtaza, Head Moharrir, having not been examined, it cannot be ascertained as to the lodging of the case-property and remaining the same in his custody.
11. I have carefully looked into the report of the Chemical Examiner Exh.9 and find that full details of the case property have been mentioned in the said report, particularly, the seals were also stated to be 'perfect'. It is also noticeable that the witnesses, particularly, P.W.1 and P.W.3 were cross- examined at great length, but not a single question was put to any witness as to the tampering with the sample. Tampering with the sample, having not been challenged at the trial stage, the objection as such, has no force. In such circumstances, mere delay in sending the case property will not, by itself, vitiate the trial. In any case, as stated by P.W.3, the requisite permission from the concerned D.S.P. Was to be obtained. In view of the above, the delay in sending the sample has been explained.
12. The case (1992 MLD 349), cited by the learned counsel, is distinguishable inasmuch as in the cited case there was nothing to show as to the custody of parcel during the period in question was not known and the record of the trial Court was silent about it, whereas in the instant case, the S.H.O., P.W.3 has nowhere stated that he did not know where the samples and case property were kept. On the other hand, he was categorical in his statement that he handed over the case property to Head Moharrir on the day of its recovery for safe custody and also for sending the samples for chemical examination.
13. It may be added that in order to obviate any doubt and to do justice in the case, the case property was produced by the Police Constable of P.S. Gulzar-e-Hijri, as directed by this Court telephonically. Messrs Nuruddin Sarki and Muhammad Saleh G. Memon, were asked if they wanted to make any objection/submission about the same but both of them stated before me that "they have nothing to say about the case property." As such, the case property was returned intact. Thus no tampering was alleged before me by the learned counsel even at the appellate stage.
14. In result, the appeal is without any merit. The judgment impugned in appeal is well-reasoned.
The appeal merits dismissal.
15. As regards the other appeal, bearing No,43/K of 1992, Mr. Muhammad Saleh G. Memon, learned counsel for the appellant, Zafarullah, submitted that the appellant as alleged, had made his escape good coming out of the car on 4-7-1986 and was apprehended by Khairpur Police on 9-11- 1986. He was not known to the police party and as such identification test in connection with the appellant was necessary. Reliance was placed by him on Alim v. The State PLD 1967 SC 307. In that case the witnesses had only a fleeting look at the assailant and had picked out the assailant at the identification parade. The Court observed that there was a clear possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier. It was thus observed that: "Under such circumstances the sole reason for the conflicting statements by the witnesses could be that they felt unable to make themselves responsible for conviction of accused. In other words, even if their identification of accused at the identification tests was bona fide, at the trial they were not able to say with certainty that he was the murderer. The question of reasonable doubt must be approached in such case from a wider examination of the circumstances of observation, and a closer consideration of the possible influences working on the minds of the witnesses, and it is unsafe to place full reliance only on the Committing Court statements of the eyewitnesses, on the point of identification?
16. The facts of the present case are somewhat not similar. The appellant Zafarullah was already known to P.W.1 Dawood Akbar, the A.S.I.P. At Gulzare-Hijri Police Station Karachi East. He being on patrolling duty had come across the incident. This was so stated by P.W.3 Ghulam Samdani, the then S.H.O. Of the Police Station Gulzar-e-Hijri. Furthermore, P.W.1 Dawood Akbar (Exh.6) has stated in his cross-examination that 'accused Zafarullah tried to run away from the car after getting down from the back side of the car of left door'. P.W.3 Ghulam Samdani (Exh.11) stated in his cross- examination that 'there was no Suspicion about Zafarullah's identity. As such, it was not mentioned by the complainant in F.I.R.
17. Reading the evidence of the above-said two witnesses together it seems that since the accused Zafarullah was fully seen by both the witnesses, their identification test was not necessary. Both the witnesses are consistent about the presence and identity of the accused Zafarullah. Reliance may, however, be placed on Muhammad Bashir Alim v. The State PLD 1988 SC 1. It may further be added that in the cited case, it appears that the witnesses were not of one voice as to the identity of the murdereRs, The cited case is, therefore, distinguishable.
18. Mr. Memon, then submitted that the heroin powder alleged to have been recovered was not weighed. It appears that each Theli appears to have been estimated of one kilogram weight. The total weight of ten Thelis was, therefore, estimated to be ten kilograms. No question was put to the witness in the cross-examination that the said heroin powder was not ten kilograms. However, the case property was produced before me but the learned counsel did not request for weighment of the said Thelis. As such the point looses all force.
19. The learned counsel lastly submitted that it has not been shown in the evidence that the other co-accused Muhammad Saleh, the driver has any connection with Zafarullah, the co-appellant. As the presence of Zafarullah stood proved in the car which was being driven by Saleh and the recovery of heroin was made from the said car, the burden was on the appellant Zafarullah to show that he had no connection with the driver or the heroin. The only plea which was taken by Zafarullah in his defence was that the driver Saleh had taken his name and involved him due to enmity, between him and the said Saleh. The pica of this motive, having been taken, has not been proved at all and the appellant Zafarullah has failed completely to prove it. As such, his false implication by the Driver Saleh, as alleged has no base.
20. I have perused the entire evidence with the learned counsel and have read the judgment with their assistance. I have no doubt in my mind that appellant Saleh as well as appellant Zafarullah have rightly been convicted of the offence. The judgment gives cogent reasons for coming to the conclusion about the presence of both the appellants in the car and recovery of the heroin powder.
I am, however, of the view that conviction under Articles 3 and 4 both cannot be sustained. Since the recovery of the heroin powder was made while the same was being transported from Sohrab Goth to some other destination, on Super Highway, the appellants are convicted under Article 3 of the said. Order only.
21. As regards the sentence, Criminal Suo Motu Nos.14/K and 16/K were issued to the appellants. In view of the huge quantity of the heroin powder, recovered in the case, the sentence is enhanced to life imprisonment.
22. In result, both the appeals stand dismissed with the modification of the sentence enhanced, as aforesaid.
23. Before parting with the case, it may be added that Toyota Corrola Car No,640-048, which has been used for transporting the heroin from Sohrab Goth Karachi, be produced in the Court of Ilnd Additional Sessions Judge, Karachi East, to be dealt with according to the provisions of the Prohibition (Enforcement of Hadd) Order, 1979, under intimation to this Court.