2017 M L D 513
[Balochistan]
Before Abdullah Baloch, J
ADAM ---Petitioner
Versus
The STATE---Respondent
Criminal Revision (T) No. 3 of 2016, decided on 15th November, 2016.
Prohibition (Enforcement of Hadd) Order (4 of 1979) ---
----Arts. 3/4---Seizure of contraband substance ---Appreciation of evidence ---Sentence, reduction
in---Prosecution case was that 4792 cans of beer and 62 bottles whisky were recovered from the
possession of accused ---Statement of all the prosecution witness es were in line with each other ---
Defense had not been able to point out any major contradiction on their statements ---Prosecution
witnesses had correctly narrated the story with regard to recovery of alleged contraband
substance from the possession of the accused ---Accused had failed to bring on record any motive
for his false implication by the prosecution ---Report of Forensic Science Laboratory in respect of
recovered contraband was in affirmative---Prosecution in circumstances, succeeded to prove the
case against the accused ---Allegedly 4792 cans of beer and 62 bottle whisky were taken into
possession but only one bottle each from the lots of beer and whisky, total two bottles/cans were
separated and sent to Forensic Science Laboratory for chemical analy sis---Report of Forensic
Science Laboratory though was positive but the fact remained that only two bottles were
examined by the Chemical Examiner and in the absence of conducting the examination of
remaining recovered contraband, it could not be presumed that the same were beer or whisky ---
Two bottles of contraband could have been considered against the accused person as recovered
substance for conviction and sentence ---Conviction of the accused awarded by Trial Court in
given circumstances was reduced fro m two years to that of already undergone ---Amount of fine
and the sentence awarded in default thereof would remain intact.
Ameer Zeb v. The State PLD 2012 SC 380; Fareed Ullah v. The State 2013 SCMR 302
and Shakeel Ahmed v. The State PLD 1998 SC (AJ&K) 31 rel.
Tahir Ali Baloch for Petitioner.
Muhammad Yahya Baloch, Additional P.G. for the State.
Date of hearing: 28th October, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Revision Petition
No.(T)03 of 2016 filed by the petitioner Adam son of Washdil, against the judgement dated 15th
June 2016 passed by learned Sessions Judge, Mekran at Turbat (hereinafter referred as "the
appellate Court") whereby the appeal filed by the petitioner was dismissed, maintaining the
judgment dated 16th May 2016 (hereinafter the judgement 16th May 2016 and 15th June, 2016
are referred as, "the impugned judgments") passed by learned Judicial Magistrate Turbat
(hereinafter referred as, "the trial Court"), whereby the petitioner was convicted under Arti cle 3
of Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to suffer two years R.I. with
fine of Rs.20,000/ - or in default thereof to further suffer three months S.I., with the benefit of
Section 382- B, Cr.P.C.
2. Facts of the case are that on 2n d October 2015 the complainant Abdul Rehman, SI/SHO,
lodged FIR No.197/2015 at Police Station City Turbat under Sections 3/4 Prohibition
(Enforcement of Hadd) Order 1979, with the averments that on the day of occurrence he along
with other police officials were patrolling the area, when received spy information that
contraband goods of Seth Rasheed son of Adam resident of Kolwai Bazar Absar and two other
persons of Mand are being transported from Pasni through Peedark road towards Turbat. Hence,
on such inf ormation, they erected a Naka at Banuk Chadaee, when at about 01.20 p.m. a truck
was seen coming from Peedark side, which was signaled to stop, but it turned and tried to escape,
hence the truck was chased and got stopped. Two persons were alighted from the truck, who flee
away from the place of occurrence, while the petitioner being driver of the truck was
apprehended. Whereafter, the truck along with driver were brought to police station and luggage
was unloaded from the body of truck, whereby found 52 sa cks containing 4992 cans of beer
foreign made Red Horse containing 80% alcoholic liquid, whereby on computing 200 cans were
found to be leaked, while 4792 solid cans were taken into possession. Moreover, two sacks of 62
bottles whisky Machkinlays, while si multaneously on checking the truck in question having no
registration number, Engine No.1107CE -67988 and Chassis No.FE177L -10782 were found.
3. In pursuance of the above FIR, the investigation of the case was entrusted to PW -5
Malang Jan, S.I., who during investigation took into possession the recovered contraband and
truck; recorded the statements of witnesses under Section 161, Cr.P.C.; sent the samples for
analysis and received the report from FSL in affirmative and on completion of investigation
prepared Challan and submitted the same before the trial Court.
4. At the trial, the accused Seth Rasheed son of Adam, Waheed son of Noor Muhammad
and Sohail son of Cherag were declared as proclaimed offenders. Thereafter, the prosecution
produced five (05) witne sses. The petitioner was examined under Section 342 Cr.P.C., however,
neither he recorded his statement on oath under Section 340(2), Cr.P.C. nor produced any
witness in his defence. On conclusion of trial and hearing arguments, the trial Court awarded
conviction to the petitioner as mentioned in para -I above vide judgment 16th May 2016 and such
conviction was upheld by the learned appellate Court, vide judgment dated 15th June 2016.
Whereafter the instant petition has been filed.
5. Learned counsel for pet itioner stated that the concurrent findings of both the Courts
below are perverse and contrary to material available on record; that the prosecution has failed to
substantiate the charge against the petitioner through consistent and concrete evidence. Lear ned
counsel for petitioner prayed for acquittal of petitioner and in alternate prayed for moderate
reduction in quantum of sentence in view of judgment of Ameer Zeb v. The State PLD 2012
Supreme Court 380.
6. The learned Additional Prosecutor General conte sted the petition on merits and opposed
the moderate reduction in the quantum of sentence on the ground that the prosecution has proved
the case against the petitioner beyond any shadow of doubt.
7. Heard the learned counsel and perused the available recor d. Record reveals that both the
Courts below have rightly found guilty to the petitioner on the basis of unshaken statements of
the prosecution witnesses. All the prosecution witnesses recorded their statements in line with
each other and the defence has n ot been able to point out any major contradiction on the
statements of witnesses. The witnesses have correctly narrated the story with regard to recovery
of alleged contraband from the possession of the appellant. The recovery of alleged contraband
has been established to have been effected from the possession of the petitioner. The petitioner
has failed to bring on record any motive for his false implication by the prosecution witnesses.
Besides, the FSL report has also been received in affirmative, which has further strengthened the
case of prosecution. Hence, on merits the impugned judgments of Courts below are not open for
any interference by this Court and I have no hesitation to hold that the impugned judgments of
Courts below are based on proper appra isal of material available on record.
8. So far as the prayer of the learned counsel for the petitioner for moderate reduction in the
quantum of sentence is concerned, in the case in hand, allegedly 4792 cans of beer foreign made
Red Horse containing 80% a lcoholic liquid and 62 bottles whisky Machkinlays were taken into
possession, but out of above said recovered quantity one bottle each from beer and whisky, total
two bottles/cans were separated and sent to FSL for chemical analysis. Though the FSL report
was received in affirmative, but the fact remains is that only two bottles were examined in
Laboratory by the Chemical Examiner and in absence of conducting the examination of
remaining recovered contraband, it cannot be presumed that the remaining material were also
beer or whisky. This fact on the face of it attracts the ratio of the law declared by the Hon'ble
Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) as well as the case of
Fareed Ullah v. The State 2013 SCMR 302, whereby it has been held that representative sample
from each slate/slab/packet etc. should have been taken and each sample should have been sealed
in a separate parcel for chemical examination. If no sample is taken from any particular piece or
if different samples taken from different pieces are not sent separately for analysis to Chemical
Examiner, then the sample would not be a representative sample and it would be unsafe to rely
on mere words of the mouth of the prosecution witnesses regarding the substances of which no
sample has been taken separately and sealed separately and tested being narcotics substance.
Under such circumstances, the samples separated for chemical examination would be considered
as extracted from two bottles and only two bottles of the contr aband could have been considered
for conviction and sentence. The Hon'ble Supreme Court in the case of Ameer Zeb held as
under: --
"For the purposes of clarity and removal of confusion it is declared that where any
narcotic substance is allegedly recovered while contained in different packets, wrappers
or containers of any kind or in the shape of separate cakes, slabs or any other individual
and separate physical form it is necessary that a separate sample is to be taken from every
separate packet, wrapper o r container and from every separate cake, slab or other form
for chemical analysis and if that is not done then only that quantity of narcotic substance
is to be considered against the accused persons from which a sample was taken and tested
with a positiv e result."
The Hon'ble Supreme Court in the case of Fareed Ullah has held as follows: --
"The record of this shows that the recovered charas allegedly weighing 24 kilograms was
in the shape of 20 littars but after the alleged recovery one consolidated sample of the
recovered substance had been taken which sample weighed 10 grams only. This admitted
fact on the face of it attracts the ratio of the law declared by this Court in the case of
Ameer Zeb v. The State (PLD 2012 SC 380) and, thus, at best only one Littar of charas
could have been considered against the petitioners as the recovered substance and the
petitioners could have been convicted and punished accordingly."
9. I am also fortified by the dictum laid down in the case of Shakeel Ahmed v. The St ate
PLD 1998 Supreme Court (AJ&K) 31. In the said case recovery of 23 bottles of intoxicant were
recovered, but only two bottles were sent for Chemical Examination, hence it was held that, "21
bottles were not sent to Chemical Examiner for examination and in absence of Report of
Chemical Examination, at least, it could not be said with regard to 21 bottles as to which type of
material they were containing. Whether they were containing intoxicant material or not is a mere
suspicion which cannot be a substitute of a proof which is strictly required in a criminal case to
be proved against the accused."
10. The above referred judgments of the Hon'ble Apex Court have stipulated specific
guidelines for examination of the contraband either in solid or in liquid for m. The examination of
each and every separate portion of contraband either sealed in plastic bag or contained in cans
and tins is essential to have been conducted by the Chemical Examiner and after receipt of
affirmative analysis report of Chemical Expert it would be believed that the alleged recovered
material is a substance that is prohibited under the law. If no examination of all the recovered
substance is carried out then under such circumstances it cannot be presumed that the entire
recovered substanc e was contraband rather presumption would be drawn that the substance that
has been chemically examined was the contraband and the accused can only be held responsible
for the contraband that has been chemically examined. Admittedly, in the case in hand only one
bottles of each beer and whisky were chemically examined, thus following the above quoted
principles of the Hon'ble Supreme Court and in absence of any chemical analyst report in respect
of all the recovered contraband, the petitioner can only be convicted and sentenced for the
recovery of two bottles of beer and whisky.
11. Thus, in view of what has been discussed hereinabove, the conviction of the appellant
awarded by the trial court under Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 is
reduced from two years to that of already undergone, while the amount of fine and the sentence
awarded in default thereof shall remain intact.
With the above reduction in the quantum of sentence, the petition stands disposed of.
JK/81/Bal Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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