' NAZIR AHMAD BHATTI, Complainant Ghulam Hussain Baluch, Inspector, Police Station, Excise Karachi of Sub-Division Malir, District East Karachi had received spy information on 2-4-1992 about the presence of huge quantity of different narcotics alongwith dealers of the said narcotics in a house situated in Katchi Abadi in Al-Fateh Colony, Gali No,3, Deep Chandoojha Road, near Petrol Pump, Patel Para, opposite Chaman Cinema. The said Inspector formed a raiding party consisting of police and excise officials under supervision of Assistant Excise Officer Agha Wazir Abbas, also with two civilian persons Muhammad Iqbal son of Abdul Hamid and Sohail Hameed son of Abdul Hameed and raided the premises at 6-00 in the morning. They saw one person named Maroof Shah in doubtful manner present in the aforesaid premises. The complainant carried out search of his person and recovered one cloth bag which was in his hand containing two slabs of Charas wrapped in a plastic bag. Each slab weighed one kilogram. The complainant arrested the said Maroof Shah. The complainant then in the presence of the aforesaid two private citizens raided the premises at the pointation of accused Maroof Shah. They found 8 persons there who were busy packing different narcotics. On seeing the police party 6 persons escaped while 2 namely accused All Mast and accused Muhammad Sadiq were apprehended at the spot and the following narcotics were also recovered from inside the premises where all the accused were present:- "(1) Charas 16 Bories plastic in every Bori, 20 patties total weight 320 kilograms.
(2) Heroin powder 1,000 plastic Thelies each Thelly of 5 grams total 5 kilograms.
(3) Heroin powder. Ten cotton Thellies and in every Thelly powder weight to one kilogram total weight 10 kilograms.
(4) Opium 250 paper bags one in every bag ten Powas in plastic and each bag weight 20 grams total weight five kilograms.
(5) Liquor. 700 pints and 600 pints different brand.
(6) Plastic bottle full of illegal wine 400.
(7) Rectified spirit one cane of 20 liters.
(8) Sealing Machine of bottles. One."
' The complainant took into possession all the aforesaid narcotics through Mashirnama signed by the aforesaid two civilian persons and separated some narcotic from each as a sample. The complainant sent Murasila to Police Station Excise, District East where case under Articles 3 and 4 of the Prohibition (Enforcement of Hadd). Order 1979 was registered on the same day at 09-30 hours.
2. After investigation all the three accused namely Maroof Shah, Muhammad Sadiq and All Mast were sent up for trial before With Additional Sessions Judge, Karachi East who charged them under Articles 3 and 4 of the Prohibition Order to which all of them pleaded not guilty and claimed trial.
3. At the trial two prosecution witnesses were produced by the State in proof of the prosecution case whereas all the three accused made depositions under section 342, Cr.P.C. They also made depositions on oath but they did not produce any other defence evidence.
4. After the conclusion of the trial the learned Additional Sessions Judge convicted all the three accused under Articles 3 and 4 of the Prohibition Order and sentenced each of them as follows and for the sake of convenience the following paragraph from pages 10 and 11 of her judgment are reproduced as under:- "Having regard to the above facts and circumstances, my view is that case against accused Maroof Shah son of Muhammadi Shah is proved under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, that from his possession Charas was secured, therefore, under Article 3 of section (1) of the Order he is awarded punishment for a term of Five years 30 stripes and also liable to pay fine of Rs,1,000.
' Whereas under Article 4 of the Order, 1979, he is punished to undergo imprisonment for 2 years with five whipping and fine of Rs,1,000.
' All the sentences shall run concurrently and he shall be entitled to the benefit of section 382-B, Cr.P.C.
' Adverting to the case of accused Muhammad Sadiq son of Muhammad Saleh and All Mast son of Hakeem Khan, my view is that the case against them is proved in accordance with law, therefore, they are sentenced to undergo following imprisonments:-
(a) On the point of recovery of Charas under Article 3(1) of the Order, 1979, they are punished to undergo imprisonment for a term of 5 years and whipping of 30 stripes and to pay fine of Rs,1,000 each.
(b) Under Article 4 of the Order, 1979, regarding the possession of the Charas both of them are punished to undergo imprisonment for 2 years and five whipping of stripes each with fine of Rs,1,000 each.
(c) On the point of recovery of Liquor/Wine/Artificial Spirit accused Muhammad Sadiq and All Mast are convicted under Article 3(1) of the Order, 1979, to undergo imprisonment for five years, with whipping of 5 stripes each with fine of Rs,1,000 each.
(d) Whereas under Article 4 of the Order, 1979, they are punished with imprisonment for 2 years, whipping of S stripes each and fine of Rs,1,000 each.
(e) On the point of recovery of Heroin Powder, Opium, accused Muhammad Sadiq and All Mast under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 are punished with imprisonment for life with whipping of 30 stripes each and fine of Rs,1,000 each."
' All the sentences shall run concurrently and the accused shall be entitled to the benefit under section 382-B, Cr.P.C. All the three convicts have challenged their conviction and sentence by Criminal Appeal No,59/K of 1994 in hand. Subsequently convict Muhammad Sadiq filed Criminal Appeal No,60/K of 1994 separately. Since both the appeals have arisen from the same judgment, they are being disposed of by a single judgment being written in Criminal Appeal No,59/K of 1994 in hand.
5. P.W.2 Ghulam Hussain Baluch Excise and Taxation Officer, who was then working as Inspector, stated that he formed a police party consisting of 20/22 members and had also picked up two Mashirs namely Sohail and Iqbal and reached the place of occurrence at 05-15 hours. At the gate of the premises, P.W.2 saw appellant Maroof Shah, whom he searched and recovered 2 slabs of Charas weighing one kilogram each. He prepared Mashirnama of arrest and recovery of narcotics in the presence of the aforesaid Mashirs at the spot which is Exh.16. The police party then proceeded to Al-Fateh Colony where they reached at 06-30 hours and in Street No,3 Opposite Chaman Cinema the apprehended accused Maroof Shah pointed out a Katcha house wherein the police party entered and found 8 culprits engaged in packing narcotics. Out of them two were apprehended at the spot while the rest succeeded in making their good escape by scaling the wall. This witness had recovered the aforesaid huge quantity of different kind of narcotics and separated some quantity from each narcotic for sample. The Mashirnamas were signed by both the aforesaid private persons. This witness had arrested accused All Mast and accused Muhammad Sadiq from the premises. P.W.1 Sohail Hameed is a witness of the Mashirnamas. He stated that he had accompanied the police party to the spot and was also present at the time of arrest of accused Maroof Shah. He saw his signature on the Mashirnamas Exh.16 and Exh.17 and attested their correctness. He stated that the Charas was recovered from the said accused in his presence. He further stated that he was also accompanying the police party when it reached the premises of the aforesaid Katcha house and recovered different quantities of narcotics. He further stated that he was also Mashir of that Mashirnama, Exh.17. He further stated that on the pointation of accused Maroof Shah co-accused Muhammad Sadiq was arrested outside of the house at the entrance door while he was standing there and accused All Mast was arrested from inside the house while he was busy in packing the narcotics.
6. In rebuttal all the three accused denied the commission of any offence and pleaded that they were innocent. It was asserted on behald of accused Muhammad Sadiq that he was not arrested from inside the place of occurrence and that he was not in any way connected with the offence and that he had gone to the place of occurrence on hearing commotion. However, this plea of convict Muhammad Sadiq is neither supported by any positive evidence from his side but is also contradicted by the testimony of P.W.1 Sohail Hameed Mashir of their Mashirnama, according to whom he was found just outside at the door of the room from where the narcotics were recovered.
There are strong reasons to believe that like the other 6 escaped culprits he was also in the process of escaping through the door when he was apprehended. There is not an iota of evidence on the record in proof of his assertion that he was only an onlooker. His presence at the spot at that early hour without any purpose was uncomprehensible. He was definitely present inside the premises and was busy in packing narcotics like his co-accused All Mast and was also present just outside the door of the room when police raided the spot and it is not a case of substitution of any accused.
7. It was also contended by the learned counsel for the appellants that there are two distinct offences having taken place at different places and their joint trial was irregular. We have considered this aspect of the matter very carefully and we are not impressed by this contention of the learned counsel. Although some narcotics were found in the possession of appellant Maroof Shah at a different place but immediately he pointed out the other place from where more narcotics were recovered at his pointation and that occurrence happened in a very short time after the first occurrence. As such no prejudice was caused to any accused by one trial of both the occurrence.
8. It was then contended by the learned counsel for the appellants that the appellants were found only packing the narcotics and not offence under Article 3 of the Prohibition Order had been committed by any of the appellants. This contention is also beside the point in so far as appellant Muhammad Sadiq and Ali Mast are concerned, because they were actually found processing and bottling intoxicants. It is also to be noted that appellant Maroof Shah was apprehended when he was not only possessing but also transporting two kilograms.Of Charas. As such offence under both the Articles 3 and 4 of the Prohibition Order were proved against each of the appellants.
9. It was then contended by the learned counsel for the appellants that there was violation of the provisions of section, 103 Cr.P.0 because respectable persons of the locality were not associated with the search of the premises. There s not denying the fact that the two Mashirs were respectable citizens who were associated with the search proceedings and all the Mashirnamas were duly attested by them at the spot. It is, therefore, immaterial whether the Mashirs belonged to the same locality or not. There was no violation of the provisions of section 103, Cr.P.C. As such.
10. It was then contended by the learned counsel for the appellants that there was misjoinder of the charges. We have not been able to comprehend this contention of the learned counsel because although there were different kinds of narcotics but the offence committed by all the appellants were of the same nature and there was no question of misjoinder of charges.
11. It was then contended by the learned counsel for the appellants that samples were not taken from all the recovered narcotics but this is immaterial because the samples which were taken from the narcotics proved that the appellants were found in possession of, as well as busy in, packing intoxicants.
12. More than sufficient evidence was brought on the record by the State in proof of the charges under Articles 3 and 4 of the Prohibition Order against all the three appellants and both the offences were proved against them with overwhelming evidence and without any doubt whatsoever. There is no merit in both the appeals which are dismissed. However, the appellants shall be entitled to the benefit under section 382-B, Cr.P.0 and all the substantive sentences of imprisonment shall run concurrently.