Possessing and trafficking narcotics

Citation Name : 2019 PCrLJ 1302 KARACHI-HIGH-COURT-SINDH
Side Appellant : TAHIR-UZ-ZAMAN
Side Opponent : State
Ss. 9(c) & 29---Possessing and trafficking narcotics---Appreciation of evidence---Sentence, reduction in---Burden of proof---Scope---Prosecution case was that 10-kilograms of charas was recovered from the possession of accused---Record showed that accused was caught red-handed, narcotics were recovered from his possession and entire recovered charas was sent to the chemical analysis---Report of the Chemical Examiner was positive---Circumstances established that prosecution had discharged its burden successfully which would shift to the accused within meaning of S. 29 of the Act---Such burden would require the accused to firstly cause dent in prosecution case and secondly to establish least justify possibility of false implication or foisting of huge quantity of charas, but defence had failed in doing so---In the present case, the accused was in jail for the last five years and the family of the accused was in miserable condition---Jail report showed that the conduct of the accused during confinement was satisfactory---Accused also undertook that he would not deal with the narcotics in future---Accused was first offender and had no previous criminal record/history---Accused had claimed himself to be the only male member of the family and had served about five years of imprisonment---Accused, in circumstances was to be given the opportunity to improve himself as a law abiding citizen---In the present case, non-examination of Police Official who allegedly delivered the narcotics substance in question to the office of Chemical Examiner and made no efforts to associate any independent person from the locality as witness in the recovery proceedings, constituted mitigating circumstances---Present case was a fit one for departure from the normal practice of determining quantum of sentence, so it would serve both the purposes of deterrence and reformation, if the sentence awarded to the accused was reduced to "already undergone by him"---Sentence of the accused was altered and reduced to the period which he had already undergone---Appeal was dismissed by maintaining the conviction awarded to the accused, however, the sentence awarded to the accused was altered and reduced to the period he had already undergone.


Citation Name : 2019 MLD 468 KARACHI-HIGH-COURT-SINDH
Side Appellant : FAHEEM ALI
Side Opponent : State
S. 13(d)---Possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that an unlicensed Kalashnikov type rifle with magazine containing ten live bullets was recovered from the possession of the accused---Record showed that complainant left police station under daily diary entry, in connection with the investigation of crime under S. 302, P.P.C. and while he was on the way, he got information on phone that the nominated accused of main case and co-accused duly armed with weapons, were wondering near a bridge---Complainant did not produce the said entry before the trial court---Departure entry by which they had left the police station for investigation of main crime and subsequent information regarding presence of accused and co-accused on certain point had not been produced therefore, without production of said document, it could not be established that the police had left the police station for the purpose mentioned in the FIR---Complainant had categorically mentioned in the memo. of recovery and arrest as well as FIR that they had prepared a joint memo. of recoveries and arrest, which was not permissible under the Police Rules, 1934---Roznamcha entry had not been produced in evidence, therefore, the entire movement as well as proceedings initiated thereupon were not of much consequence---Plea taken by the defence that nothing was recovered from the accused nor he was arrested from the place as shown in the FIR and entire proceedings were completed at police station, carried much weight in circumstances---Complainant had admitted that entire papers, which were tallied before the trial court, were written by one W.P.C, whose name had not been mentioned in the calendar of witnesses, nor the complainant was in a position to disclose his name---Such conduct of the complainant on that score itself showed that he had not conducted the investigation properly or entire proceedings were completed at the police station without his direction and knowledge---Complainant was unable to depose that as to on which date he sent the said weapon to laboratory for opinion---Even the person through whom he had sent the weapon and road certificate, which was also necessary to be accompanied with a person carrying parcel or property of the police station belonging to any criminal case, had ever been produced before the Trial Court, which left the reflection of some doubts in the prosecution story---Private witness had deposed in his examination-in-chief that complainant had sealed the weapon at the spot and prepared such mashirnama in his presence and co-mashir---Said witness further deposed that the complainant had also recorded his statement under S.161, Cr.P.C.---Such deposition of witness was totally belied with the statement/deposition of the complainant, who had categorically deposed that the memo. of recovery as well as FIR and other proceedings were handed down by W.P.C. on his dictation---Such major contradiction could not be overlooked or left untouched---Police party had to cross populated area/villages but failed to associate any independent person rather had chosen to associate mashirs, who were caste-fellows of the complainant of main case---In the present case, the complainant had himself conducted the investigation of the case without offering any explanation/justification as to why he did not handover the case papers to any other Police Officer for conducting the investigation---Such conduct on the part of the Police Officer was deprecated---Circumstances established that prosecution had not succeeded in proving its case against the accused beyond reasonable shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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