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Jail Criminal Appeal No. 32/K of 1985, decided on 30th January, 1986.

‑‑‑ Retrial‑‑Record not showing anything which suggested that case of accused was prejudiced‑‑Mere fact that cross‑examination was. not conducted, would not mean that retrial be ordered.‑‑[Cross‑examination].

‑‑Art. 4‑‑Recovery of contraband‑‑Raid at hotel where accused was staying‑‑Stay of accused at hotel admitted and proved‑‑Allegation of accused that contraband was planted‑‑Quantity of contraband being so much and expensive as well that allegation of planting was disbelieved.

‑‑‑Appreciation of evidence‑‑Discrepancy in charge or statement of witnesses being of clerical nature‑‑Nothing, held, would turn on such discrepancy.

S. Murtaza Hussain for Appellant.

Akhlaq Ahmad Siddiqui for the State.

Dates of hearing: 29th and 30th January, 1986.

The appellant was convicted by the Additional Sessions Judge, South Karachi, on 21‑10‑1985 under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to 3 years R.I. with whipping numbering 10 stripes. He was also fined a sum of Rs.1,000. In default of payment of fine he was to suffer 3 months R.I. further. He has challenged his conviction and sentences through this appeal.

2. The occurrence took place on 30th January, 1985 at 10‑30 p.m. at Punjab Hotel, opposite Sessions Court, Karachi. Excise Inspector Mr. Abdul Qadir Soomro on receiving an information took two Mashirs namely Mumtaz Ali and Siraj with him and raided Room No., 6 of Punjab Hotel, opposite Sessions Court, Karachi. There was present the appellant who came out of the room. After performing the legal formalities the Excise Inspector searched him but found nothing on his person. On interrogation the appellant pointed out an Almirah wherefrom one white polythene bag was recovered. He opened it and found therein 410 grams of heroin in bulk and 20 'purris' of heroin wrapped in a 'thely' and 'khaki' paper. 10 grams sample of heroin was taken out and was sent to the Chemical Examiner for analysis. His report Exh. 7‑A is positive.

3. The prosecution has examined two witnesses in support of the case. Abdul Qadir Soomro appeared as P.W. 1 and supported the version already given above. The other witness Siraj corroborated him. The appellant in his statement under section 342, Cr.P.C. simply denied the allegations made by the witnesses against him. The trial Court accepted the prosecution version end convicted and sentenced the appellant as stated above.

4. It is contended by the learned counsel that the appellant did not understand Urdu and, therefore, he has been deprived of adequate defence. On his request the appellant was sent for from the jail and asked some questions. He has answered them precisely and correctly. This means he understands what was asked and has given intelligent replies. Consequently, it cannot be said that he did not understand the charge, or evidence led against him and that had been prejudiced.

5. The learned counsel then submitted that as the appellant had engaged a counsel who did not appear to cross‑examine the witnesses or to properly defend the appellant, this case may be sent for a fresh trial. The learned trial Court had taken note of this fact expressly in his order. In that view of the matter he would have asked any question or given further opportunity if he had thought that necessary. Even otherwise we do not find anything on the record suggesting that the case of the appellant has been prejudiced. The mere fact that the' cross‑examination had not been conducted does not support the contentions of the learned counsel.

6. It was a very simple case of a raid at Hotel room wherefrom heroin had been recovered. There is no enmity or any other motive on the part of the prosecution to falsely implicate the appellant in this case. Even nothing to that effect has been stated by the appellant in his statement under section 342, Cr.P.C. Rather, he stated that he was staying in the hotel as a guest when the complainant came there and forcibly took away a sum of Rs.10,000 from his possession. He B further stated that though he was arrested from the hotel yet, neither the Manager nor other staff of the hotel were made witnesses or Mashirs.

7. So it is quite clear that he was staying in the same hotel. There was a raid and he was arrested therefrom. The question is whether the recovery of contraband is right or not The quantity recovered is 410 grams plus 20 'purris'. This quantity is so much and expensive that we would not believe that it had been planted. Consequently we find no justification in this objection either. The learned counsel then pointed out discrepancy in the statement of the two witnesses inasmuch as that Abdul Qadir, Excise Inspector stated that the quantity recovered was 415 grams, whereas Siraj stated it was 414 grams. He has also referred to a similar discrepancy in the charge. It may, however, be noted that what has been stated in charge is that the quantity was 410 grams plus 20 'purris'. This has been explained by Abdul, Qadir in his statement, where he stated that the total weight of the heroin including‑20 'purris' was 415 grams. The figure on the other hand appears to be a mere clerical mistake so far as Siraj is concerned. Siraj, otherwise fully supported the raid and the recovery. Thus nottunb turns on this discrepancy either.

8. The learned counsel then submitted that there is nothing on the record to say that the 10 grams of heroin that had been separated for chemical analysis was sealed. Even this contention is incorrect. It is borne out Mashirnama Exh. 7 that the 10 grams sample was sealed. This Mashirnama from was Exhibited in the statement of Abdul Qadir.

9. The upshot of the whole discussion is that there is no Good reason to interfere. There is thus no merit in this appeal and we dismiss the same.

10. The contraband material shall be sealed in the Court and a certificate in this connection shall also be given. It should be destroyed in accordance with law in the presence of a responsible officer, in case the appellant has not taken any further proceedings in accordance with the constitution in the law.

M. B. A. Appeal dismissed.

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