Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: LAL MUHAMMAD alias HAM LALOO VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Ather Saeed, Arshad Noor Khan Title: LAL MUHAMMAD alias HAM LALOO vs THE STATE Case No.: Criminal Appeal No,76 of 2008 Date of Judgment:2008-10-30 Reported As: PLD 2009 Karachi 212 Result: Order accordingly
JUDGMENT
JUDGMENT ' ARSHAD NOOR KHAN, J.---This appeal has been filed by the appellant against his conviction and sentence to suffer life imprisonment under section 9(c) of Control of Narcotic Substances Act 1997 (hereinafter shall be referred to as the "Act 1997") and to pay fine of Rs,1,50,000 and, in case, of default in payment of fine, he shall suffer further S.I. For 1-1/2 years with benefit of section 382-B, Cr.P.C. Passed by the learned Special Judge-II (C.N.S.), Karachi in new Spl. Case No,174/2004 (old Spl. Case No,66/2003) The State v. Lal Muhammad alias Laloo in Crime No,4/2003 under section 6/9(c) of Act 1997 of P.S. ANF Clifton, Karachi. 2. The case of the prosecution, as per F.I.R., is that the appellant was already arrested in Crime No,21/2002 wherein 120 Kgs. Of charas was allegedly recovered from him and he was already remanded to judicial custody and the complainant, S.-I. Ghulam Abbas obtained the custody of the appellant from the Superintendent Central Prison, Karachi in pursuance of remand order dated 8-2-2003 passed by the VIII-Judicial Magistrate South, Karachi and on 10-2-2003 the appellant during the course of investigation admitted to be a big dealer of narcotics since long and further disclosed that he through his workers had got kidnapped many persons and received ransom and committed many murders and also extorted money from the persons engaged in the scrap business in the Shershah Scrap Market as well as from the transporters. He also disclosed to have sold out 7 Kgs. Heroin powder to a foreign appellant namely Rajesh. He also disclosed that he has concealed a heavy quantity of charas on the plot situated at Raees Goth, opposite Hub Co. Muachko, Karachi. On such disclosure by the appellant, the complainant formed a raiding party and proceeded along with the appellant vide roznamcha Entry No,7 at about 1500 hours and the appellant brought them to plot No,35 near Raees Goth, Opposite Hub Co. Muachko Karachi where
---
## Page 2
they found a boundary wall around the said plot having one iron gate which was lying locked and the appellant informed that he was not in possession of the key of the said gate. The complainant requested to people who gathered there to witness the search but they declined due to the fear of the appellant, therefore in presence of the mashirs namely H.C. Nisar Ahmed and P.C. Muhammad Hassan the Lock of the gate was broken and the gate was opened and the appellant by walking ahead of the police party brought them in a room which was also lying locked and after breaking the said lock they entered into the said room where the appellant pointed out four nylon bags containing the charas. The said bags were taken in custody at the pointation of the appellant and were checked and 40 bundles of charas rods from each of the bags were recovered and the net weight of the said charas was measured to be 160 kilogram. The complainant then separated one bundle of charas, 1 kilogram from each of the four bags which were sealed separately for chemical analysis and the remaining property was sealed separately and he prepared mashirnama of arrest and recovery and returned to the police station where he lodged the F.I.R. 3. After registration of the F.I.R. The samples of charas were sent to the chemical examiner on 11-2- 2003 and after usual investigation challan against the appellant was sent in Court to stand trial. 4. After receipt of the challan, the copies were supplied to him in terms of section 265-C, Cr.P.C. Vide receipt Exh.2 and the charge against him was framed under section 9(c) of the Act 1997 vide Exh.3 to which he pleaded not guilty and claimed trial vide Plea Exh.4. After framing of the charge, the prosecution examined P.W.1 Ghulam Abbas, S-I.P. Vide Exh.5 who produced mashirnama of arrest of the appellant and recovery vide Exh.P/1, copy of F.I.R. Vide Exh.P/2, the letter dated 8-7-2003 Exh.P/3, criminal records of the appellant vide Exh.P/4 and Exh.P/5, chemical examiner's report vide Exh.P/6, attested copy of F.I.R. In Crime No,1/2003 vide Exh.P/7 as well as attested copy of mashirnama of arrest of the present appellant and recovery of 120 kilograms charas in Crime No,1/2003 as Exh.P/8, copy of order of the Magistrate as Exh.P/9 who allowed the remand of the appellant as well as photocopy of the order passed by Sessions Judge, Karachi South in Cr. Revision Application No,5/03 whereby the remand of the appellant was allowed as Exh.P/10, Photostat copy of the remand letters addressed to the Superintendent Central Prison, Karachi vide Exh.P/11 and P/12, Photostat copy of application under section 167, Cr.P.C. And Photostat copy of roznamcha entries vide Exh.P/14., P.W. Nisar Ahmed Exh.6, P.W.3 H.C. Muhammad Hassan vide Exh.7. 5. Prosecution did not examine any other witness, as such the statement of the appellant was recorded by the trial Court under section 342(1), Cr.P.C. Wherein he denied the allegations of the case of prosecution and stated that his custody was illegally obtained from jail by ANF and they falsely implicated him in this crime because his son, who was an absconder, was required by them and he was compelled/forced to give the address of his son and on his refusal, he has been falsely implicated. He further showed his ignorance about sending of the samples to the chemical examiner and has stated that the prosecution witnesses have deposed against him because they are the employees of ANF. He has not examined himself on oath under section 340(1), Cr.P.C. Nor has examined any witness in his defence, however he has produced his written statement vide Exh.10. 6. The learned trial Court after hearing the learned counsel for the parties, convicted and sentenced the appellant as stated above. The appellant being highly aggrieved and dissatisfied with his conviction and sentence has preferred this appeal. 7. We heard Mr. Muhammad Ilyas Khan, learned counsel for the appellant and Mr. Ashfaq Hussain Rizvi, learned Special Prosecutor ANF on behalf of the State. 8. Mr. Muhammad Ilyas Khan, learned counsel for the appellant vehemently contended that the appellant was admittedly in judicial custody and custody was obtained by the complainant in utter disregard of the provisions of section 167, Cr.P.C. Which provides that the custody of the
---
## Page 3
prisoner is to be handed over during day light and before sunset he is required to be lodged again in the prison. He has further contended that the complainant flagrantly violated the provisions of sections 20 and 21 of the Act 1997 as neither any warrant of arrest was obtained from the Magistrate nor any search warrant was obtained from the competent Court as such the complainant has violated the provisions of sections 20 and 21 of the Act 1997. He has further contended that the whole quantity of charas allegedly recovered at the instance of the appellant has not been sent to the chemical analyser and only four pieces of rod were separated at the alleged time of the recovery and were sent to the chemical examiner who consumed only 20 grams of charas and submitted his report in affirmative, as such the appellant, at the most, could only be held responsible for recovery of 20 grams of charas which falls under section 9(a) of Act, 1997 for which punishment of two years in provided which the appellant has already undergone as he is in custody since the year, 2003. He further contended that the chemical examiner's report could only be considered to the extent of the charas which was consumed at the time of the analysis and the report could not be given effect in positive for recovery of the whole charas which was not sent to the Chemical Examiner. He has further contended that there are material contradictions in the statement of the prosecution witnesses which adversely reflects on the case of the prosecution and creates reasonable doubt in the case of the prosecution and the benefit of doubt must go in favour of the appellant as a matter of right and not as matter of grace. He lastly contended that the appellant is aged about 71 years and is suffering from the illness in the jail and he is entitled for reduction of his sentence. According to him, the case of prosecution is not free from doubt, as such the appellant may be acquitted from the charge. In support of his contentions, he has relied upon the case of State through A.G. Sindh, Karachi v. Hamijoo reported in 2003 SCM R 881, the case of Nasrullah v. The State reported in PLD 2001 Peshawar 152, the case of Arshad Mahmood v. The State reported in PLD 2008 SC 376, the case of Muhammad Younas v. Mst. Perveen alias Mano reported in 2007 SCM R 393, the case of Karl John Joseph v. The State reported in PLD 2004 SC 394, the case of Zafar v. The State reported in 2008 SCMR 252, the case of Muhammad Hashim v. The State reported in PLD 2004 SC 856 and the case of Waris Khan v. The State reported in 2006 SCM R 1051. 9. Mr. Ashfaq Ahmed Rizvi, learned Special Prosecutor ANF appearing for the State vehemently controverted the submissions advanced by the learned counsel for the appellant and has contended that no mala fide has been alleged against the prosecution nor any particulars of mala fide have been brought on record and the evidence brought on record by the prosecution is confidence-inspiring and rightly apprised by the learned trial Court. According to him, no material dent has been inflicted by the defence in the evidence of the prosecution witnesses which fully established the recovery of 160 kilograms of Charas at the instance of the appellant. According to him, the provisions of sections 20 and 21 of the Act 1997 are directory in nature and not mandatory and that the technicalities must be avoided by the Court to do the complete and substantial justice. He further contended that the whole quantity, recovered in bulk at the instance of the appellant, was not mandatorily required to be sent to the Chemical Examiner for report and the samples were sent by the prosecution to the chemical examiner and his positive report proves that the whole quantity of Charas recovered at the instance of the appellant was contraband narcotics and the learned trial Court rightly convicted the appellant and the judgment passed by the learned trial Court does not suffer from any illegality or infirmity, as such the appeal is liable to be dismissed. In support of his contention he has also placed reliance on the case of Zaffar v. The State reported in 2008 SCMR 252. 10. We have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record as well as the case-law on the subject.
---
## Page 4
11 The facts which have not been disputed by either parties are that the appellant was confined in central prison in Crime No,21/2002 and his custody was handed over to the complainant vide order dated 6-2-2003 passed by the learned Sessions Judge, Karachi South in Cr. Revision Application No,5/2003 and the learned VIII-Judicial Magistrate, Karachi South in pursuance of the order passed by the learned Sessions Judge, Karachi South, directing the Superintendent Central Prison to hand over the custody of the appellant to the complainant vide letter Exh.P/10 and in compliance with the direction of the Judicial Magistrate, the Superintendent Central Prison handed over the custody of the appellant to the complainant Ghulam Abbas vide his letter Exh.P/12 on 8-2-2003. ' It is in these circumstances, the learned counsel for the appellant heavily relied upon the proviso to section 167, Cr.P.C. To contend that by such proviso the custody of the prisoner could not be kept out of the prison between sunset and sunrise. The proviso to section 167, Cr.P.C. Is usefully quoted herein below for the sake of convenience: "Provided that the appellant shall not be kept out of the prison while in the custody of the police between subset and sunrise." 12. A perusal of the language employed in the aforesaid proviso to section 167, Cr.P.C. Shows that the appellant shall not be kept out of the prison while in the custody of the police between sunset and sunrise. The word "prison" used in the said proviso has been interpreted by the learned counsel for the appellant as "confinement in the prison where the convicted prisoners or the under-trial prisoners are kept" but the learned counsel for the appellant has not cited any case-law to support his version that the term "prison" only includes the prison where the convicted prisons or under-trial prisoners are kept, as such we have gone through the dictionary meaning of the word "prison" at page 1194 Black's Law Dictionary 6th Edition wherein "any other place or building for keeping of a prisoner in confinement" is also described as "prison". The meaning of the "prison" as interpreted in the Black's Law Dictionary is usefully quoted herein below for the sake of convenience:-- "(i) A public building or other place for the confinement of persons, whether as a punishment imposed by the law or otherwise in the course of the administration of justice." (ii) A State or Federal correctional institution for incarceration of felony offenders for terms of one year or more; (iii) The word "prison" and "penitentiary" are used synonymously to designate institution for the imprisonment of persons convicted of the more serious crimes, as distinguished from reformatories and county or city jails." Thus, the meaning of the word "prison" includes any other public building or a place than the place where only convicted prisoners or undertrial prisoners are kept. The word "prison" as used in the proviso to section 167, Cr.P.C., therefore, could not be used for exclusive meaning of the place where only convicted or under-trial prisoners are kept but it may also be given effect to other public building for keeping the prisoners and admittedly the police station has a lock-up within its boundaries to keep the prisoners and the said lockup may also be treated as prison to give effect to the word "prison" used in section 167, Cr.P.C. And if the lockups are included in the definition of prison, the interpretation of this proviso is not difficult to say that police officer/official cannot take out the custody of the prisoner in between subset and sunrise from the lock-up also. The argument advanced by the learned counsel for the appellant, therefore, does not bear any force. 13. The learned counsel for the appellant has vehemently contended that the complainant had violated the provisions of section 20 to 22 of Act, 1997 as no warrant of arrest or search warrant was obtained by the complainant and the benefit of such violation must go in favour of the appellant which adversely reflects on the recovery of the Charas. 14. The vires of section 20, ibid, came for consideration before the Honourable Supreme Court in the case of Karl John, supra, wherein a full bench of the apex Court while approving its findings in the case of Fida Jan v. The State reported in 2001 SCM R 36 was pleased to declare the provisions of
---
## Page 5
section 20 being directory and not obligatory. The relevant observations of the Honourable Supreme Court in the case of Fida Jan, supra, are usefully quoted herein below for the sake of convenience:-- "Thus, we are inclined to hold that provisions of section 20 are directory in nature, therefore, its non- compliance cannot be considered a strong ground for holding that the trial of the appellant is bad in the eye of law." ' The scope of sections 20,21 and 22 of Act 1997 has also been considered by the larger bench of the Honourable Supreme Court in the case of Zafar, supra, wherein the case of Fida Jan, supra, the case of State through A.G. Sindh, supra, and the case of Karl John, supra, were considered and the Honourable Supreme Court was pleased to observe that the provisions of sections 20 to 22 of Act 1997 being directory, noncompliance of which would not be a ground for vitiating the trial of the conviction of the appellant. The observations made by the Honourable Supreme Court in the case of Zafar, supra, are also quoted herein below for the sake of convenience:-- "Even the provisions of sections 20 to 22 of C.N.S.A. Being directory, non-compliance thereof, would not be a ground for holding the trial/conviction bad in the eyes of law. On the ground, the conviction of the appellant cannot be set aside. Reference in this behalf can be made to the cases of Fida Jan v. The State 2001 SCM R 36, State through A.G. Sindh v. Hemjoo 2003 SCM R 881, Karl John Joseph v. The State PLD 2004 SC 394 and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCM R 393, wherein it is observed that where provisions of C.N.S.A. Are directory in nature, non-compliance of the same is not fatal. Even otherwise no evidence has been produced to establish that the place of recovery and arrest was not within the jurisdiction of the police station concerned." ' The judgment given in the case of Zafar, supra, has been decided by the larger bench of Supreme Court, which is binding on this bench and in our humble opinion in view of the dictum laid down by the Supreme Court in the aforesaid case of Zafar, supra, we have no hesitation to observe that the learned trial Court rightly ignored provisions of sections 20 and 21, ibid. Since both these provisions of sections 20 and 21 of the Act 1997 have already been declared directory and not obligatory by the Honourable Supreme Court, therefore we do not find any merit in the contention advanced by the learned counsel for the appellant. ' The scope of sections 20 and 21, ibid, qua section 25 has also been considered by the Honourable Supreme Court in the case of Arshad Mahmood, supra, wherein the Honourable Supreme Court while examining the provisions of sections 20,21 and 25 of the Act 1997 was pleased to observe that in the investigating agencies/raiding party could not be given such powers to search residential house of a person to affect his secrecy and privacy which is guaranteed in the Constitution, therefore the raid conducted in the case of Mahmood Arshad, supra, was not approved on the ground that the residential house of that appellant was searched without obtaining prior warrant of search but the case of Arshad Mahmood, supra, in our humble opinion, is not applicable to the circumstances of the present case as 160 kilograms Charas has been secured at the instance of the appellant from a house which was lying abandoned and locked and the appellant led the raiding party and pointed out the said abandoned/vacant house to the complainant from where heavy quantity of Charas was secured. ' The case of State through A.G. Sindh Karachi has also been considered by the Honourable Supreme Court in the case of Zafar, supra, as well as the case of Waris Khan and of Nasrullah, supra, relied upon by the learned counsel for the appellant which in our humble opinion are not applicable to the circumstances of present case in view of case of Zafar v. The State, supra. 15. The learned counsel for the appellant vehemently attacked on the Chemical Examiner's report Exh.P/6 and has contended that the whole quantity of the contraband substance had not been sent to the Chemical Examiner and only 1000 grams of Charas was taken out from each of the
---
## Page 6
bags and were sent to the Chemical Examiner and the Chemical Examiner by consuming only 5 grams of charas from one rod out of 100 rods each has given opinion that the substance referred to him was Charas, as such only the charas which was consumed by the Chemical Examiner for examination can be treated as recovery and if the said recovery of 20 grams is taken into consideration, the case of the appellant falls under section 9(a) of the Act 1997. ' The contention advanced by the learned counsel for the appellant, in our humble opinion, is devoid of any force for the reason that the charas has been secured in bulk quantity of 160 kilograms and as per evidence of the complainant and mashirs at the time of sealing the case property, 1000 grams of the charas were separated from each of the four bags containing charas and were sealed separately and all the said samples were sent to the Chemical Examiner on the following day of its recovery and the Chemical Examiner after examination of the said contraband opined the same to be charas. The heavy quantity of charas secured at the instance of the appellant is not mandatorily required to be sent to the Chemical Examiner and only the samples of the said contraband charas and its positive report is sufficient to hold the whole recovery as a charas. It has also come on record through the evidence of prosecution witnesses that the complainant after recovery of 160 Kilograms charas at the instance of the appellant containing in four bags, separated 1000 grams from each of the bags and the said recovery and the samples have not been seriously controverted by the defence side in the lengthy cross-examination conducted on the witnesses, as such it has not been disproved from the evidence of the prosecution witnesses that 160 kilograms charas was not secured at the instance of the appellant and 1000 grams charas was not separated from each of the four bags. The report of the Chemical Examiner also affirms the receipts of four packets of the charas and the weight of the said four packets have been stated in his report Exh.P/6 to be about 4000 grams out of which he consumed 5 grams from each piece (rod) of each of the four parcels and opined it to be a charas. Even, in case, if the contention of the learned counsel for the appellant is accepted that 20 grams charas which the Chemical Examiner consumed for the analysis, the whole quantity of 4000 grams sent to him would be treated as charas and in that case too the case of the appellant does not fall in clause (a) or (b) of section 9 of Act 1997. 16. The contention of the learned counsel for the appellant also does not impress us that whole quantity of charas was not sent to the Chemical Examiner for report. The whole quantity of charas secured in bulk was not required to be sent to Chemical Examiner and its samples sent to the chemical examiner for analysis and its positive report was sufficient to D hold the whole quantity secured at the instance of the appellant to be the charas. In case, if any authority is needed, the reference may be had to the case of Nadir Khan and another v. The State reported in 1988 SCM R 1899 wherein full bench of Honourable Supreme Court while dealing with the similar contention advanced on behalf of the appellant in that case, was pleased to observe that it was not necessary to take samples from every one of the packets as the required evidence has been produced to connect the report with the case property notwithstanding the omission to produce the carrier of the sample. The ratio of the case of Nadir Khan has also been applied by the Supreme Court in the case of Ali Muhammad v. The. State reported in 2003 SCM R 54 wherein the Honourable Supreme Court was pleased to observe as under:-- "In the instant case one slab out of the entire case property recovered was sent to the Chemical Examiner who opined that the said sample was charas viz narcotic drug/substance and the rest of the case property was produce in the Court which was identified by the P.Ws. To be the same recovered from the appellant Mst. Rani from her person. The P.Ws. When examined were even not suggested by the learned counsel for the appellants that the remaining property produced in Court was not the same or that it was tampered with."
---
## Page 7
' In the present case also admittedly a huge quantity of charas recovered on the pointation of the appellant has been produced before the learned lower Court through the mashirs and neither in the cross-examination of the mashirs nor in the cross-examination of the complainant/Investigating Officer the production of the charas has been challenged nor any suggestion has been put to any of the mashirs or the complainant that the property produced in the Court was not the same property which was secured at the instance of the appellant, as such the observation of the Supreme Court in the case of Ali Muhammad, supra, is fully applicable to the circumstances of the present case. 17. In the case of Muhammad Younus, supra, the Honourable Supreme Court was pleased to observe that the innocence of the appellant would not depend on the question of competence or otherwise of a police official to investigate the offence. The trial of the case would not be vitiated merely for the reason that the case had been investigated by an officer not authorized to do so. The Court is required to…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.