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Petitioner: TARIQ MABOOD VS Respondent: StateHonorable Justice Shaukat Aziz SiddiquiNoor Alam Khan
2012 P Cr. L J 833
[Islamabad]
Before Shaukat Aziz Siddiqui and Muhammad Anwar Khan Kasi, JJ
TARIQ MABOOD---Appellant
versus
THE STATE---Respondent
Criminal Appeal No.328 of 2009, decided on 16th February, 2012.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Possession and trafficking of narcotics---Appreciation of evidence---Quantity of narcotic to be dispatched for analysis---Scope---"Reasonable quantity"---Interpretation---Trial court had convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997---Contention of accused that out of five packets allegedly recovered from him containing 5 kgs of heroin, only 1 gram of heroin from each packet was sent for analysis, which was violation of law and was not sufficient quantity---Validity---According to Rule 4 of Control of Narcotics Substances (Government Analysts) Rules, 2001, "reasonable quantity" of narcotic was required to be dispatched to the nearest testing laboratory---Plain interpretation of reasonable quantity was that a quantity by which analysis may be carried out to report that subject quantity was narcotic---Authority which carried out the chemical examination did not object to the quantity of narcotic as being either insufficient or unreasonable---Accused had made no effort to call the chemical examiner as witness---Entire case record showed that accused had never challenged the fact that recovered substance was heroin---Technical grounds and scientific frictions could not be made basis to extend any benefit to the accused---Accused had not established any mala fide against the complainant-police officials---Trial Court had passed the impugned judgment in accordance with the evidence and material available on file---Appeal of accused was dismissed and judgment of Trial Court was upheld.
PLD 1949 Lah. 175; PLD 2004 SC 856; 2007 PCr.LJ 1984; 2008 SCMR 1991; 2008 YLR 2232; 2006 YLR 2826 and PLD 1959 Pesh. 176 distinguished.
(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---
----R. 4---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Quantity of narcotic to be dispatched for analysis---Scope and Interpretation---According to Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001, "reasonable quantity" of narcotic was required to be dispatched to the nearest testing laboratory---Plain interpretation of reasonable quantity was that a quantity by which analysis may be carried out to report that subject quantity was narcotic.
Noor Alam Khan for Appellant.
Khawaja Javed Iqbal Standing Counsel for the State.
Date of hearing: 19th January, 2012.
JUDGMENT
SHAUKAT AZIZ SIDDIQUI, J.---Appellant preferred the instant appeal under section 410, Cr.P.C. read with section 48, C.N.S.A., being aggrieved of the judgment dated 28-5-2009 passed by learned Additional District and Sessions Judge, Islamabad whereby he was convicted to sentence to nine years with a fine of Rs.90,000 and in default to undergo 9 months' R.I.
2. The prosecution case as set out in complaint Exh.PC, on the basis of which formal F.I.R. Exh.PC/1 was registered and law was set into motion, is that on 25-11-2007, Baseerullah SI along with other police officials was present at Motorway Bus Stop, Jhangi Syedan, when at 6-45 p.m. a man holding a light red colour shopping bag in his hand crossed the road and came towards the Lahore Bus Stop who on seeing the police party, became frightened. The said person was apprehended by the I.O. with the help of other police officials, whose name was later on known as Tariq Mabood son of Saadal Mabood caste Awan Pathan R/O Umar Zai Charsada, presently Madina Colony, Police Station, Fariq Abad, District Peshawar. His shopping bag was searched out of which five packets wrapped in white polythene, were recovered. On opening the packets, heroin was recovered which was found 5 kilogram on weighing, out of which 1 gram from each packet was separated for the purpose of chemical analysis, hence, this prosecution.
3. The learned counsel for the appellant argued that impugned judgment is against law, facts and material available on record and is result of misreading and non-reading of evidence. That only one gram sample has been separated from the entire five packets of the alleged recovered contraband/heroin; therefore, from five packets, separation of one gram can only be done through a microscopic device and not possible with human hands, thus this fact alone is sufficient to create a reasonable doubt in the prosecution case and doubt of even a single circumstance is sufficient to extend its benefit to the accused as a matter of right. That the evidence produced by prosecution does not connect the appellant with the commission of offence and the learned trial Court has failed to appreciate basic principle of evidence, therefore by setting aside the impugned order and judgment, appellant may be acquitted of the charge. The learned counsel adds that report of Chemical Examiner is not from competent authority and acceptance of quantity of one gram for analysis is against the rules applicable. The learned counsel for the petitioner placed his reliance on case-laws reported as PLD 1949 Lahore 175, PLD 2004 Supreme Court 856, 2007 PCr.LJ 1984, 2008 SCMR 1991, 2008 YLR 2232, 2006 YLR 2826 and PLD 1959 (W.P.) Peshawar 176.
3A. On the other hand learned Standing Counsel submitted that, huge quantity of 5 Kgs. of heroin was recovered from appellant and prosecution successfully brought home guilt of appellant. And that impugned judgment is well reasoned and each material piece of evidence and circumstance has been taken into consideration. Learned Standing Counsel further submitted that in cases of heinous offences, accused cannot be extended benefit of minor discrepancies, if any.
We have heard the learned counsel and perused the record.
4. Main emphasis of learned counsel for the appellant is that only 1 gram of heroin has been separated from 5 packets (one kg each) for analysis, which is violation of law and does not come within the definition of "Sufficient Quantity". According to rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001 "Reasonable Quantity" is required to be dispatched to the nearest testing laboratory. The plain interpretation of reasonable quantity is that a quantity by which analysis may be carried out to report that subject quantity is narcotics. According to the Chemical Examiners report Exh.PE sample contains heroin which can be used to cause intoxication. The Chemical analysis gives following picture:--
PHYSICAL APPEARANCE Consistency Fine Powder Colour Brown Aroma Nil
HEROIN IDENTIFICATION TESTS
TEST
POSITIVE
NEGATIVE
1. Solubility
H2O CHC3l
Ethane
2. Marquis Test
3. Nitric Acid Test
4. Frond's Test
5. Selenleus Acid Test
6. T L C Test
The authority which carried out the chemical examination, nowhere objected that quantity received is either insufficient or unreasonable, therefore, we hold that this objection of the learned counsel for the appellant is without any substance. It may be noted that appellant made no effort to call the Chemical Examiner appointed under section 35 of C.N.S.A. 1997 whose report tendered in evidence as conclusive proof in terms of section 36 of the act ibid. The perusal of entire file further shows that nowhere appellant challenged that recovered substance of 5 kgs. is not heroin. Substance, which destroying the society and killing the youth of the country, need to be discouraged, therefore, hyper technical grounds and scientific frictions cannot be made basis to extend any benefit to accused. The case laws relied by the learned counsel for the appellant, due to facts and circumstances of the instant case is not applicable on the matter in hand. We have also examined the statement of witnesses and perused the impugned judgment, carefully but find nothing to hold that learned trial Court passed the impugned judgment besides evidence and material available on the file. Huge quantity of 5 kgs. of heroin cannot be foisted upon any individual, moreover, appellant did not urge any mala fide against the police officials, who apprehended him and recovered the narcotics.
In this view of the matter, instant appeal is dismissed and judgment dated 28-5-2009 passed by the learned trial Court is upheld. We may note that learned trial Court had already taken lenient view while inflicting punishment upon the appellant.
M.W.A./58/ISL. Appeal dismissed.