' MUHAMMAD SADIQ LEGHARI, J.--- Appellants were tried and convicted for offence under section 9(c) of C.N.S. Act, 1997 by the learned Judge Special Court (C.N.S.), Karachi Division on 16-10-2001.
They were awarded 14 years' R.I. With fine of Rs,1,00,000 each in default of payment of fine each shall suffer one years' R.I. Further.
2. Prosecution case is that on 27-12-1999 a Mobile Party of A.N.F. Police Station Clifton led by Inspector Khaliduddin received spy information that some persons taking Narcotics in a Car No,K- 6447 were proceeding towards Airport from Green Town, SITE, Karachi. The police party then took position at Railway Crossing Gulshan-e-Iqbal. At about 10-00 p.m. The Car No,K-6447 was seen approaching towards the wireless gate with three persons in it. When it came near the police party the Inspector gave signal for stopping it. The driver accelerated the car in order to get away but the driver of police vehicle blocked his way. One packet containing six Kgs heroin powder was recovered from the car and three occupants thereof arrested. 200 grams of powder were 'drawn as sample for chemical examination and sealed separately. The bulk of stuff was also sealed there.
Mashirnama of seizure and arrest was prepared at the spot. After that all the three accused and the parcels containing the heroin powder were brought at A.N.F. Police Station where the case was registered.
3. After the investigation the challan was submitted before Judge, Special. Court (C.N.S.) who tried and convicted the accused, as mentioned above. The conviction and the sentence have been assailed through present appeal.
4. Appellants' Advocate contended that the heroin powder has been foisted upon the appellants after taking them into custody, on 24th of December from the places of their residences.
Commenting on the evidence of prosecution side, learned counsel argued that complainant and Mashirs all belong to same Agency A.N.F., therefore, their evidence cannot be believed, specially when they claim to have received the advance information and they had time to associate private persons with them for witnessing the arrest and recovery. It was next argued by the learned counsel that the prosecution witnesses particularly the two Mashirs gave contradictory evidence on material particulars. He pointed out that one of the Mashirs claimed the Mashirnama to have been written by complainant and according to other it was written by him under the dictation of the complainant. They do not agree about the month of the incident. About presence of Mosque and Community Hall near the scene of offence also they do not agree with each other. One Mashir says that the bag containing the stuff was lying by the side of the driver seat whereas the other claimed it to have been in front of the seat by the side of driver.
5. Learned Advocate also argued that the number of entry in the Roznamcha about departure of the police party from the police station has not been given nor the same entry has been produced in evidence. It was further argued that the evidence of accused/appellant Khawar Abbas and D.Ws.
Gul Jehan and Muhammad Sadiq was not attached due weight. According to the learned counsel that evidence has proved the arrest of accused Khawar and Baqar on 24-10-1999. It was also halfheartedly argued that the heroin was not produced before the Court at the time of recording the evidence. The report of Chemical Examiner was not signed by Government Analyst as required by sections 35 and 36 C.N.S. Act and the depositions of P.Ws. Were recorded on solemn affirmation in violation of section 8 of Oaths Act.
6. The learned Special Prosecutor representing A.N.F. Argued that the inconsistencies in the depositions pointed out by the defence are not material. According to him, the depositions of P.Ws.
Were required to be taken on solemn affirmation and were not required to be taken on oath under section 8 of Oaths Act. He also pointed out that the heroin powder was produced in Court and that fact is confirmed through, reply given by P.W. Naeem Khan in response to the second question put to him in cross-examination.
7. Complainant Khadim, Inspector A.N.F. And Mashirs Zahid Mansoor and Naeem Khan, S.I.P. And H.C. A.N.F. Respectively have all deposed that while being on patrol duty they, on the basis of spy information, organized themselves for intercepting the indicated car taking the narcotics. While standing at wireless set on the road they noticed the indicated Car No,K-6447 coming from Green Town side. Despite signal to stop the driver accelerate the car but he had to stop it after the driver of police vehicle brought the pick-up in front of it in the middle of road. They further deposed that they recovered the bag containing 6 Kgs. Heroin powder from the car and captured three occupants thereof. Out of them one driving the car introduced himself as Khawar, the person sitting by his side disclosed his identity as Baqar and the third one sitting on rear seat told his name as Shah Nawaz. After drawing 200 grams of heroin as sample for chemical examination, the stuff was sealed and the Mashirnama prepared.
8. No doubt, all the three P.Ws. Belong to same organization but they are as good witnesses as any one else. No enmity between the P.Ws. And the appellants is proved to have been existing prior to the incident. The inconsistencies in the evidence of the witnesses highlighted by the defence are not of much significance in the circumstances. Such inconsistencies do occur in the oral version of P.W. Recorded about 18 months after the occurrence.
9. About the non-production of heroin powder, the reply of P.W. Naeem Khan in cross-examination is sufficient. He was put question about the colour of the heroin powder available in Court which he claimed to be light brown. The question itself amounts admission of the presence of heroin powder in the car at the time of examination of the witnesses.
10. The report about the chemical examination of the stuff was signed by the officer appointed by the Provincial Government for the job he was fully competent to examine the stuff and sign the report being Incharge of the laboratory, Chemical Examiner for the Government of Sindh. Moreover, the defence does not allege specifically or claims the stuff to be something other than the heroin.
11. It is true that number of Roznamcha entry about the departure of police party from Police Station A.N.F. Was not given by the witnesses nor the entry was produced but that omission itself does not affect the substantial direct and supporting evidence about the seizure of the stuff and arrest' Of the accused which, in the circumstances, is sufficient to establish the prosecution case otherwise.
This is the case where six Kgs. Heroin has been seized. Had the case been of foisting the stuff that could be done with small quantity also. Not only that one Toyota Corolla was also seized from the custody of the applicant and it is extremely difficult to foist one car also together with the stuff only for the purpose of implicating some person. Also no question was put to the witnesses challenging the making of entry in Roznamcha.
12. The oral evidence of the appellant and D.Ws. That Khawar and Baqar were arrested on 24-10- 1999 in presence of P.Ws. Is not believable. Appellant Khawar and Baqar while deposing under section 340(2), did not claim the presence of D.Ws. At the time of their alleged arrest on 24-10-1999.
Also nothing is to prove that any complaint in shape of application or telegram was made about the so-called unjustified arrest of the two persons. The belated plea of arrest on 24-10-1999 seems to be afterthought and for the purpose of defence.
13. The section 8 of Oaths Act does not relate to the deposition of the witnesses in a criminal case in ordinary course.
14. In view of the above the, evidence on prosecution side does establish the recovery of six Kgs.
Heroin powder from the possession of the appellant. The learned trial Court has rightly convicted them for possessing the heroin powder.
15. However, the sentence of imprisonment for 14 years is too severe specially when there is no evidence showing the appellant to have been involved in commission of the same offence earlier also. In view of the quantum of the stuff sentence of eight years will meet the ends of justice, therefore, dismissing the appeal the sentence of imprisonment is modified and reduced from 14 years' R.I. To 8 years. R.I.
' Above are the reasons for our short order dated 23-10-2002. accordingly.