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Petitioner: MUNIR AHMED VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, Syed Ali Aslam Jafri Title: MUNIR AHMED vs THE STATE Case No.: Criminal Appeal No, D-43 of 2000 Criminal Appeal No,192/1 of 1985 Date of Judgment:2001-08-13 Reported As: 2001 YLR 124 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal under section 48 of the Control of Narcotics Substances Act, 1997 (hereinafter referred to as the C.N.S. Act) is directed against the judgment, dated 6-4-2000, passed by the learned Special Judge (Narcotics), Sukkur, whereby the appellant has been convicted under section 9(c) of the C.N.S. Act and sentenced to suffer R.I. For 14 years and to pay fine of Rs, 10,00,000 (Rupees one million only) and in default whereof to undergo further R.I. For 5 years. ' The prosecution case is that on 1-6-1998, the appellant was arrested by Inspector Gulzar Ali Shaikh, S.H.O. 'A' Section Police Station, Sukkur, from General Bus Stand, Sukkur and 3 Kgs. Of Charas was secured from his possession. The Investigating Officer sealed about 500 Grams of Charas in one packet as sample for sending to the Chemical Examiner, Sub-Laboratory, Sukkur at Rohri, who issued certificate stating that the substance contained in the parcel was not Charas. The remaining Charas was sealed in another packet, which was sent to Court as case property. Charge was framed on 19-8-1999 and the accused/appellant pleaded not guilty to the charge. On 16-9- 1999 P.W.1, A.S.I. Ghanzafar Ali Shah was examined by the prosecution. This witness fully supported the securing of Charas weighing 3 Kgs. From the appellant. In examination-in-chief, he stated that he is an experienced Police Officer and can say with certainty if any substance is Charas, or not from its smell. He was shown 5 slabs of Charas in Court after opening the sealed packet in Court and the sample sent back by Chemical Examiner. He stated that the first packet article-A, which contained 5 slabs weighing about 2.5 Kgs. Was Charas while the second packet which contained sample sent back by Chemical Examiner was not the same stuff, which was sealed in his presence and sent to the Chemical Examiner. Both the packets were thereafter re-sealed in the Court in
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presence of appellant and his Advocate. On this date the Special Public Prosecutor complained that in this case also the Chemical Examiner, Doctor Shahabuddin Shaikh has sent negative report and has reported that the stuff sent was not Charas. He further complained that the Chemical Examiner Rohri, Doctor Shahabuddin Shaikh was inhabit of changing the Narcotic substances sent to him for Chemical Examination on receiving illegal gratification. The learned trial Court thereafter sent the packets containing sample returned by Chemical Examiner, Rohri and the packet containing remaining Nartocitc substance to Chemical Examiner Chemical Laboratory, Karachi. The learned Trial Court made the following order:--- "S.P.P. Points out that in this case also the Chemical Examiner Dr. Shahabuddin Shaikh has sent negative report and has reported that the stuff sent was not Charas. He points out that there are several complaints against this Doctor that the people of accused approach him and after giving him illegal gratification get the report of their choice. I have also received such reports from Magistrates of this District and from other sources that this Doctor does not enjoy reputation of integrity and changes the reports so that the accused persons involved in Narcotic cases could get their acquittal from the Courts on the basis of such reports. S.P.P. Requests that the samples as well as remaining case property of this case which is available in Court be sent to the Chemical Examiner, Chemical Laboratory at Karachi. According to him, the report is doubtful and has been issued with mala fide intention so that the accused could get acquittal from the Court. The case property as well as samples sent by the Chemical Examiner were in sealed condition which were opened in Court and shown to the witness A.S.I. Ghazanfar Ali, who is present and examined today. The sample seems to be a soap and the remaining property is five (5) black slabs and apparently it is Charas. Both these properties viz sample as well as remaining case property are sealed separately in Court and be sent to the Chemical Examiner, Chemical Laboratory at Karachi with letter through Record-Keeper of this Court for examination and report. The report of Chemical Examiner Rohri be kept in safe custody. Also issue summons to him, as Court witness, for recording his evidence under the peculiar circumstances of the case." ' The letter written by Trial Court to the Chemical Examiner, Karachi is reproduced below:--- "To, ' The Chemical Examiner, ' Chemical Laboratory, Government of Sindh, Karachi. Subject: EXAMINATION OF THE CASE PROPERTY INVOLVED IN CASE NO. 31 OF 1998 (C.R. NO. 91/98 OF P.S. "A" SECTION SUKKUR. ' Whereas in the above crime dispute has arisen over the report sent by the Chemical Examiner, Sukkur at Rohri, therefore, I am sending you the samples as well as case property duly sealed, through Mr. Khalid Sultan Siddiqui Record-keeper of this Court alongwith two parcels. ' You are hereby directed to examine the abovementioned property of the said crime on top priority basis and submit your report directly to this Court on or before 2-10-1999. (Agha Rafiq Ahmed Khan), Sessions Judge/Special Judge, Sukkur." ' On 2-10-1999 the report of Chemical Examiner, Karachi was received, which was in affirmative. Thereafter, evidence of P.W.2 Inspector Gulzar Ali Shaikh, the Investigating Officer was recorded on 27-10-1999, who produced the FIR., affirmed that the Mashirnama of arrest and recovery Exh. 7 produced by A.S.-I. Ghazanfar Ali Shah was the same, which was prepared by him and further produced the First Chemical Examiner's Report Exh. 13 and second Chemical Examiner's Report Exh. 14. Thereafter, the prosecution closed its side and the learned Trial Court examined Court witnesses No,1 Khalid Sultan Record-Keeper Sessions Court, Sukkur, Exh. 16, who deposed that he had taken the sample and the property in sealed condition to the Chemical Examiner, Karachi and had brought the same in sealed condition after examination by the Chemical Examiner, -alongwith the Chemical Examiner's Report. Thereafter accused/ appellant Muneer Ahmed was examined under
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section 342, Cr.P.C. Doctor Shahabuddin Chemical Examiner, Sukkur at Rohri was examined as Court Witness No,2 Exh. 9. He deposed that he received 481 grams of material said to be Charas from A' Section Police Station, in sealed condition and had conducted examination thereby consuming 25 grams material. He further deposed that he issued the report Exh. 13 and sent the remaining material back to the Police Station. In cross-examination he denied the suggestion that he changed the actual Charas sent by police and had put some other material the packet. He denied that he has mixed up with Drug peddlers and issues false reports by changing the properties. He denied that he was approached by the accused party and, therefore, he gave false report. He further denied suggestion that he was being financed by Drug-peddlers for changing the property and issuing false report. . ' Accused/appellant examined himself on oath as well as under section 340(2), Cr.P.C. In his statement under section 342, Cr.P.C. He had stated that he was apprehended near Bus Stop, while he was going in Rikshaw. He denied the recovery of 3 Kgs. Of Charas from his possession. He denied that he got the Charas, sent to the Chemical Examiner Rohri changed. He further stated as follows:- -- "Sir, I am innocent and have been falsely implicated by the police in this case. Nothing was recovered from me. I am doing Embroidery work at Lahore and used to bring pairs of clothes to Sukkur for selling the same. On the day of alleged incident I had come by Bus from Lahore and was going in Rikshaw alongwith material when I was apprehended by two police men who came on motorcycle. They thereafter forcibly brought me at Police Station ' A' Section, Sukkur. I had also sold clothes of embroidery to Police Staff of ' A' Section and since I used to demand money I was involved in this false case. Nothing was recovered from me." ' In his statement on oath under section 340(2), Cr.P.C. He stated that he was doing embroidery work at Lahore from where he used to bring the cloth to Sukkur for sale. He further stated that he used to supply the same to Fine Tailor Master and other shopkeepers from whom he used to receive orders. On the day of incident he was going to Fine Tailor Master in Rikshaw. He had 12 pairs of cloths and Rs, 5,238. On the way two police-men on motorcycle stopped his Rickshaw and took him to Police Chowki from where one A.S.I. Took him to 'A' Section Police Station and told the S.H.O. That Charas was recovered from him. He was thereafter challaned to face trial. He stated that he was innocent. No defence witness was examined by the appellant. ' The Trial Court then heard the learned S.P.P. For the State and Mr. Maqbool Ahmed Awan, Advocate for the appellant. Following points for determination were framed:--- (1) Whether on 1-6-1998 at 3.30 p.m. At General Bux Stand Sukkur Police Inspector, Gulzar Ali Shaikh of ' A' Section Police Station Sukkur secured (3) Kilogrammes Charas from the possession of accused in presence of mashirs? (2) Whether the accused is guilty for the offence, for which he is charged? ' The learned Trial Court decided the Point No,1 in affirmative and while deciding Point No,2 held that the accused was found guilty for the offence punishable under section 9(c) of the C.N.S. Act. The Trial Court convicted and sentenced the appellant as narrated in the earlier part of the judgment. The Secretary Government of Sindh Health Department was directed- to conduct enquiry against Chemical Examiner Doctor Shahabuddin Shaikh, who according to the learned Trial Court favoured the accused and issued negative report. ' Being aggrieved with the conviction and sentence as above, the appellant has preferred this appeal before us. ' We have heard Mr. Maqbool Ahmed Awan, learned counsel for the appellant and Mr. Faizullah Korai learned S.P.P. For the State.
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' The learned counsel for the appellant has not assailed the finding of the Trial Court on the point of arrest of appellant and recovery of Charas from him. He addressed arguments on legal and technical aspects only. Thus the finding of fact by the trial Court has gone unassailed and unchallenged. ' The first objection raised by the learned counsel for the appellant is that when a negative report was received from Chemical Examiner Rohri. The learned trial Court should have believed the same and judgment of acquittal ought to have been given. Replying to the objections it has been contended by the learned S.P.P. That there were general complaints against the Chemical Examiner, Rohri, that he has mixed-up with Drug-peddlers and on receiving huge amount by way of illegal gratification, he was indulged in changing in material sent to him and was issuing false and fake certificates. He has further submitted that the Courts are not supposed to act blindly and mechanically but to administer justice by excising jurisdiction vested in them looking to the facts and circumstances of each case. He has, therefore, submitted that the learned Trial Court acted perfectly within its jurisdiction and in the aid of justice by sending the substance received back from Chemical Examiner, Rohri and the remaining substance duly sealed and lying in the custody of the Court to the Chemical Examiner, Karachi for satisfying itself about the nature of substance recovered from the accused. ' In order to appreciate the respective contentions of the learned Advocates and the justification on the part of the Trial Court in sending the sealed packets to the Chemical Examiner, Karachi, we have very carefully examined the material available on record. P.W.1, A.S.I. Ghazanfar Ali Shah has deposed that the packet, which was received hack from the Chemical Examiner. Rohri did not contain the same stuff, which was sealed in his presence and was sent to Chemical Examiner. The Investigating Officer Inspector Gulzar Ali Shah deposed in his examinationin-chief that the packet containing sample, which was sent to Chemical Examiner Rohri contained Charas and the packet, which has been sent back by Chemical Examiner, Rohri is not the same, which was sent by him to the Chemical Examiner. He stated that the Chemical Examiner has changed the Charas and issued false report just to save the accused. He further stated that the cloth in which the sample was returned by the Chemical Examiner, does not bear his signature and the signatures of the mashirs. He further stated that the packet, which contains remaining Charas, which was sent back by Chemical Examiner, Karachi is the same and it bears his signature as well as the signatures of the mashirs. In cross-examination made by Mr. Maqbool Ahmed Awan a very senior Advocate practicing at Sukkur, the statement of Investigating Officer, that the Chemical Examiner has changed the Charas and the cloth containing the sample has gone unchallenged. Thus, the prosecution case that the Chemical Examiner Rohri changed the material sent to him remains unassailed. In order to ascertain the fact further, we have very carefully examined both the Chemical Examiners Reports Exhs.13 and 14. In the Chemical Examiner's Report Exh. 13 issued by Chemical Examiner, Rohri it is stated under the caption "copy of the label on the parcel" that there were signatures of two mashirs and Investigating Officers on the said packet. When the statement of Investigating Officer to the effect that the sample, which was returned by Chemical Examiner Rohri was contained in a cloth, which did not bear signatures of mashirs and Investigating Officer, is considered, with the contents of Chemical Examiner's Report, Rohri, we find that Chemical Examiner, Rohri has changed the cloth of parcel which he was not supposed to do. A perusal of the Chemical Examiner's Report Exh. 14 shows that the material which was contained in sample packet was giving smell like 'soap. The colour of said material was yellowish brown while the other packet contained 5 greenish brown semi-soft slabs with smell like Charas. There is another discrepancy which proves the prosecution allegation against the Chemical Examiner Rohri. According to the report of Chemical Examiner Rohri Exh. 13 the net weight of substance received by him was 481 grams. He consumed 25 grams of material and returned the remaining material to the Police
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Station A' Section, Sukkur. However, the Chemical Examiner's Report from Karachi shows that net weight of the contents of the sample packet was 290 grams only. The Chemical Examiner Rohri according to his own report had consumed 25 grams of material out of 481 grams. Thus, the sample packet ought to have contained 456 grams but the said packet contained a substance weighing 290 grams only. ' So far the material sent to Chemical Examiner, Karachi by the Court is concerned, no illegality has been pointed out. The learned Trial Court has acted within its jurisdiction and in the interest and proper administration of justice to which no exception can be takcen. If some unscrupulous person and particularly public servants and more particularly, the expert starts indulging in the activities leading to the defeating of justice, the Courts shall always be vigilant in keeping the stream of justice undulated and the fountain of the administration of justice clean from every dirt and filth. We are persuaded to agree with the submissions of the learned S.P.P. That the Chemical Examiner Rohri was enjoying bad reputation, for the further reason that the Federal ' Government was ultimately compelled to issue Notification dated 6-1-2000, published in the Gazette of Pakistan Extraordinary Part-2 on 11-1-2000, specifying the laboratories for the purpose of C.N.S. Act, excluding the Chemical Examiner, Lab., Sukkur at Rohri. The Notification reads as follows:- - "S.R.O. 4(1)/2000, dated 6-1-2000. In exercise of the powers conferred by section 34 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), the Federal Government is pleased to notify the following laboratories to be the Federal Narcotic Testing Laboratories for the purposes of the said Act, namely:--- (1) Drug Testing Laboratory Sindh, M.A. Jinnah Road, Opposite Allah Wallah Market, Karachi; and (2) Government Public Health Laboratory Quetta." ' For the foregoing reasons we are of the considered opinion that the Trial Court very rightly sent the remaining quantity of Charas lying with it in sealed condition to Chemical Examiner, Karachi and has placed reliance on it for awarding conviction and sentence to the appellant to which no exception can be taken. There is no allegation on behalf of accused that the substance lying with Court and sent to Chemical Examiner Karachi was not the same, which was recovered from the accused/appellant. It has not been contended that there was any possibility of change of the substance while in custody of Court. The objection raised by the learned counsel for the appellant is without any force and is repelled accordingly. ' The second contention of learned counsel for the appellant is that after receiving report from Chemical Examiner, Rohri, which was in negative and report of Chemical Examiner Karachi, which was in positive the learned Trial Court ought to have amended the charge so as to reduce the quantity of the Charas to 2.5 Kgs. From 3 Kgs. Originally shown in the charge. ' The learned counsel has further contended that the Trial Court has committed an illegality which vitiates the entire proceedings and, therefore, the conviction and sentence be set aside and the case be remanded back to the Trial Court for re-trial. ' We do not find any substance in the contention for the reason that under section 221, Cr.P.C. a charge should state the offence with which the accused is charged, and the other particulars required to be included in the charge are the sufficient description of the offence, law and sections of the law against which the offence is said to have been committed under section 222, Cr.P.C. The charge is required to contain such particulars as to the time and place of alleged offence and the person (if any) against whom -or the thing in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. It is provided in section 225, Cr.P.C. That no error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it
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occasioned a failure of justice. It is further provided in section 232(i), Cr.P.C. That if any appellate Court or the High Court is of the opinion that any person convicted of an offence was mislead in his defence by the absence of the charge or by any error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. The legislature has gone to the extent of providing in section 535, Cr.P.C., that no finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless in the opinion of the Court of appeal or revision, a failure of justice has occasioned thereby. ' Now coming to the facts of this case we find that the charge has been framed on the basis of material available on record as required under section 265-D, Cr.P.C. Which provides that after perusing the police report or as the case may be, the complaint and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with trial of accused, which shall frame in writing a charge against accused. The Trial Court framed charged alleging that accused was found in possession of 3 Kgs. Of Charas and the same was secured from his possession. The charge was in accordance with the prosecution case and no amendment was required after first Chemical Examiner's Report from Chemical Examiner, Rohri for the reason that the prosecution insisted that the report of Chemical Examiner Rohri was not genuine and he had changed the stuff sent to him for examination. Subsequently the prosecution version stood established. ' In addition to the above fact the learned counsel for the appellant conceded during the course of arguments that the punishment provided for possessing 2.5 Kgs. Of Charas and 3 Kgs. Of Charas is same and even if it is established that 2.5 Kgs. Of Charas was secured from accused, instead of 3 Kgs. As alleged by the prosecution it would not change either the nature of offence or the punishment provided therefor. When asked to show as to how any prejudice has been caused to accused, the learned counsel had no reply. The second contention is also without substance which is hereby rejected. ' The third contention raised by the learned counsel for the appellant is that the signature of accused/appellant was not obtained on his statement under section 342, Cr.P.C. Which according to the learned counsel is ate illegality and, therefore, the case should be remanded to the Trial Court for recording statement of accused afresh and to conduct re-trial from the stage of recording statement of accused under section 342, Cr.P.C. However, the learned S.P.P. And A.A.-G. Pointed out that though the signatures of accused does not appear on the English version of the statement under section 342, Cr.P.C. But signature of accused appears on Sindhi version of the statement under section 342, Cr.P.C. The learned counsel for the appellant was shown the R & Ps. And after going through the Sindi version of the statement of accused under section 342, Cr.P.C. He conceded that the statement bears signature of the accused/appellant. The learned counsel thereafter gave up the objection. ' The last objection raised by the learned counsel for the appellant is that the certificate appended to the statement under section 342, Cr.P.C. Is typed and signed by Trial Judge in the English version and is written in the handwriting of Reader and signed by the trial Judge in the Sindhi version. Neither in English version nor Shindi version a certificate is in the handwritings of the trial Judge and, therefore, the requirement of section 364(2) has not been complied with, which provides that the Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. The learned counsel has contended that it is an illegality and, therefore, is not curable under section 537, Cr.P.C. It was submitted that on account of above illegality the proceedings from the stage of recording of statement of accused stood vitiated and, therefore, after setting aside and conviction and sentence the case should be remanded back to the trial Court for recording the statement of accused/appellant afresh under section 342, Cr.P.C. And after
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appending certificate as required under section 364(2), Cr.P.C. The proceedings should take place afresh. The learned counsel for the appellant was asked if any prejudice has been caused to the accused/appellant on account of certificate having been typed by the Steno on dictation of the trial Judge beneath the English version of the statement of accused and written by the Reader beneath the Sindhi version of the statement under Signature of the trial Court. He was not able to point out any prejudice to the accused/appellant. However, he persisted that since it is an illegality, therefore, even if no prejudice has been caused to the accused/appellant, it is not curable and shall have the effect of vitiating the trial from the stage of recording of statement of the accused. ' On the other hand the learned A.A.-G. And S.P.P. Have contended that the substantial compliance has been made with the requirement of law by appending the certificate on English and Sindhi versions. They have contended that the perusal of order sheet, dated 1-11-1999 when the statement of the accused was recorded, shows that Mr.Maqbool Ahmed Awan, Advocate was present and in his presence statement of accused was recorded in open Court. There is no allegation that the questions were not put directly by the Trial Judge to the accused and the answers were not recorded under the dictation of the trial Judge. It is also not the case of learned counsel for the appellant that the certificates both in English and Sindhi…
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