Muhammad Saleh (Appellant) VS The State (Respondent)

ottDl- !r st-lEE'f IN TT{E HIG{.i COURT OF SINDH, CIRCUIl' COI IIt'I, FIYDERABAD.

Crinrinal Appeal NoD-64 oI 2021

'' DATtr ORDI]II WI'TII SIGNATUIIE O[ JUDGE 1. For orders on ofiice objection 2. For hearing of lA 4502t2021 t

3.For hearing of main case.

l\,4r. Agha Waqar Ahmed Advocate for appellant. l\rr Shawal( Rathore, DepLlty ProsecLttor General, Sindh We have heard learned coLlnsel for appellant as well as learned D.P.G. Reserved for judgnrent.

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I DGE

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IN THE HIGH COURT OF SINDH,

CIRCUIT COURT HYDERABAD

BeIore Mr. Justice Mohammad Karim Khan Agha Mr. Justice Muhammad Faisal l(amal Ala-rn

Cr. Appeal No.D-64 ot 2021

Muhammad Saleh Appeilant

Versus

The State. Respondent

Appellant : Muhammad Through Mr. Agha Waqar Ahmeo, Saleh ]Advocale I ResDondent : The State Through Mr. Snawak Rathore, D.P.G Date of hearing 08.06.2022 Date of judgment t6.06.2022

JUDGMENT

MOHAMMAD KARIM KHAN AGHA, J.-This a ppeal is dirccted against the judgment tated 22.O5.2A2\, passed bl, the Iearned Model Criminal Trial Court-l / Special Judge, Control of Narcotic Substances Act, Hyderabad, in Special Case No.251 of 2018, arising out of Crime No.61 ol 2018, registered at Police Station Rahoki Hyderabad, under section 9(c) of Control of Narcotic Substances Act, 1997 (CNSA) whereby the appellant Muham.nad Saleh hlrs been convicted u/s 9l,r)CNSA and sentenced to suffer RI lor Iife and to pay the fine ol Rs.1,00,000/-. In case of default in payment of fine he was ordered to sulfer simple imprisonment for one year more (the impugned judgment). \ Benefit of Section 382-8 Cr.P.C. was also extended to the accused.

2, The brief facts of the prosecution case as disclosed in the FIR are that complainant SIP Dili Jan Rind of CIA Center, Hydcrabad appeared at P.S Rahoki, Hyderabad and lodged present FIR stating therein that on 14.11.2018 at 1900 hours, he along wirh his subordinate staff namely ASI Ghulam Ali Dal, PC Muhammad Khan Dogar, PC Muhammad Bachal, and PC Muhammad Imran

ADc

Waggan left CIA Center for patrolling in Government vehicte/mobile No.SPM-038 vide entry No.16 at about 1600 hours During patrolling via village Jhando Zounar after about one kilometer away they saw Lhat one person was coming on motorcycle, who on seeing the police ncbile from 4C0 yards, tried to turn his motorcycle and due to such act the motorcycle slipped and he fell down and was apprehended being suspicious at about 1800 hours with the help of staff, On enquiry apprehended person disclosed his name as Muhammad Saleh S/o Ga.ji Bux Khoso Due to non-availabiliq, of pdvate persons ASI Ghulam Ali Dal and PC Muhammad Khan Dogar were picked up/nominated as mashirs' On personal search oI the accused they recovered two packets of red coiour from fold of his shalwar. The packets were opened and checked and found containing two pieces of chars in each packet' I The recovered chars was weighed which became 2 kilograms. The recovered charas was sealed in white coloured cloth bag for chemical examination. The complainant also recovered one currency note of its.1000/- and one currencY note of Rs50C,'- total Rs.15OO/=. The fell down motorcycle was also checked and found one white colour "kata" wrapped with white rope on seat oI said motorcycle, which was also found containing 39 packets of red colour and; all packets were checked and found two pieces of chars in each packet total 78 pieces. AII 78 pieces were weighed which became 39 kilograms. The total weight of both recovered properties was 41 kilograms. On enquiry about recol'ered charas the apprehended person disclosed that the .ecovered charas belonged to him and he used to sell the same. The recovered charas was sealed in same white plastic katla for chemical examination. The documents of motorcycle bearing No.HAJ-0338 black colour, model unknown, maker Unique, Engine No.DSE- \ 775597 ar,d Chassis No,DSP-497449 were asked but apprchended person failed to produce the same. Accordingly, the recovered motorcycle was seized under section 550 Cr,P.C. Then, accused and case property were brought at police station where F i.R. was lodged by compiainant SIP Dili Jan of CIA Centre, Hyderabad, on behalf of the State under section 9(c) CNSA.

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3.After usual investigations this case was challaned afld the aPPellant pleaded not guilty to the char8e and claimed trial.

4.In order to prove its case the prosecution examifled 04 PW's wllo exhibited various documents and other items in support oI its case. The appellant recorded his statement undel section 342 CI'PC wherein he denied all the allegations which hacl been made against him aircl claimed false implication. :'1e did not give evldence on oati'. however he cli':l call three DW's in support of his defence case.

5.After hearing the Pa*ies and aPPre.iating the evidence on record the learned Judge of the trial court convicted and sentenced the aPPellant as set-out earlier in this judgment. Hence the aPPellant has filed tllis I appeal against his conviction.

6.The facts of the case as well as evidence produced beforc the trial coult find an elaborate mention in the imPugned judgment, therefore, the same are not reProduced here so as to avoid duPlication and ulrlecessary repetition,

7.Leamed counsel for the appellant sub[rlled that the aDi el]ont was conlpletely iulocent and that the narcotics had been loisted upon hilr by the police, that there were major contradictions in the evidence of the Pw s lvhiclr rerdered it unreliable: that no safe custody oflhe nartotic had been ft'oven and as such based on any or of all the above i'actors the appellanl by extendirg hinr the benefit of the doubt be acquitted. In suppoft ofhis contentiolls he has placed relience on the cases ofAbdul Sattar V The State (SBLR 2019 Sin.lh 586), Basharat Hussain Shah V The State (2020 PCr.IJ Not('irg), AEjad AIt V The State (2012 SCMR 577), Mst, Sakina Ramzan V The State (2021 SCMR 451), Akhtar Meen V The state (PLD 2022 Sindh 841, Ikramuuah and others V The State (2015 SCMR 1002), Khaltl Ahmed V The State (PLD 2OO8 l(arachi 8), Maula Jatr V The State (2014 SCMR 862), Abdul Rehman V The state (2016 PCr.lJ Note 791, I"Iaji Zafar Abbas V The state and others (2016 PCr.u 1170), Hussaln Ali v The State (2020 MLD 70), Noor Hassan V The State (2O2O yLR 2643) and Abdul waqar V The State (2018 YLR 2358)..

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8.On the other hand, learned Additional Prosecutor Ceneral Sindh has fully supported the impugned judgment. In particular l.ie has contended that the appellant was arlestecl on the spot that narcoiic was recovered ftom the him and from the bike which ire was dliving;, that lhe PWs evidence can be safely relied upon and safe custody of the rurcotic has been ploven which ploduced a positive chemical report anLl thus t11e appeal be dismissed. In support oI his contention he has placeLl reliance on the cases of Shabbir Hussair V The State (2021 SCMR 198), Shafa Ullah Khan V The State aud a'Jot}Jet (2021 SCMR 2005), Mushtaq Ahmad V The state and another {2020 SCMR 474), Ajab Khan v The State (2022 SCMR 317), Muhammxd sarlraz v The State and others (2017 SCMR 1874) as well as Form No.22.70 (Volume III, Partl) of Police Rules 1934.

I 9. We have heard the arguments of the learned counsel for the parties, gone tfuouBh the entire evidelce which llas been read out b), th(] lealned counsel for the appellant the impugned judgment with thei able assistance and have considered the relevant law including thai cite(i at tlle bar,

10.AIter reassessment of the evidence we lincl that the pr osecrtion has proved its case against the appellant beyond any reasonable cloubt for the following reasonsi

(a)That the FIR was registerecl with promptitude gi,,,ing no tirre for concoction and the 5.161 statenents of the PW's were ri:cotrled promptly which were not significantly itrproved upon by any IrW at the time of giving evidence.

(b)That the .urest and recovery was made on the spot and the appellant was caught red handed with the narcotics by ihe police whose evidence Iuilv con'oborates each other in all rualerial t respecis as well as thc Drosecution casc It is it well sc':rlrd by now thai the evidence oi a police wihless is as reliablc ir! any odler witness provided thai no enmity exists between them and the accused and in this case no enmity has been suggested or ploven against any of the police PW's and as such the police l'rad no leason to falsely implicate the appellant in a false case. Thus we believe ihe police evidence which is corlobolative in all mateiial lespects. In this respect reliance is placed on the case of Mustaq Ahmed V The State (2020 SCMR 474)

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(c)That there are no maror conkadictions hr the eviclence of the PW's and it is weil settled by noh' that minor cor,tr;)diclions whi.l' do not effect the materiality oI the evidence can be ignorerl. In lllis respect reliance is placed on Zakir Khan V State (1995 SCMR 1793).

(d)Mo6t significantly the nalcotics were lecoveLe,:l fuom the bike which the appellant was driving alone with no othel Passengers and the narcotics were recovered from the back oi the bike. The bile wr' recovered along with Ihe nalcolics as Per'lrclno o[ .rl l cst and recovery ancl was Produced in court a1o[8 witll thc recoveled narcotics. hl this respcct in the similar case of Hussairl Shah v The State (PLD 2O2O SC 132) it was held as uncler witll }rspect to the driver of a car which can also aPPIy to a motor bike Lhiver at P 134 para3;

"Hussain Shah appellnnt toas dripittg tlrc rele? t'chicfu phen it ens intercepted nnd fron n sectel cnL h/ al Lltil oehicle a huge quantity of nucotic sLLbslnllce l 1l bcan rccooered and subsequently n rePott receiT)e{l Itutt1 Lllt Cllenti.nl Exnniner lnrl declared tlttll fhe rcaal)er((l l. sLtbst-ince,as Chtttt:-'. Tlle prosLctLtiotl lttilfiasst: depasitg aboLtt the dleged recooery rvrc Public st tu ll5 tuho hnd no ostensible reason to fnLsehl inlplicnle lfu snil appeLlant in n cdse af this nature. Tlu snitl zuitnesst:s httd finde consistent stote Ents t'ully incilltiflnLing Ll1( nppellant in the alleged ot'fence. Notllini has been bt'LtuSltt to our notice rdtich could possibly be l$ed to tlothl lltt TreracihJ of the snid ltitnesses. Both lle colu ls belou ltil undertnken a1'! exlnustilte nfinlysis of tlle eTtidencc n1'ttilnhlL' afi tle re.'.iat ttfiai lud tllei carlcurred il1 their ct:tttlttsiott regnrditlg gLtilt of tlv snid nppellant hming ban Ptot'ctl beyond rasonnble do bt nnd uPon oL olafi illdcpL'ndetll eoaluation of the eoidence tue ha|)e not been nble lo lnle n uee of tlp fifittet tlit'fercnt' ftofit tl1fi! concurht ll)/ lnlt)j by lhe cowts belou t,is-it-uis the snid nryellal1l".

(e)That in this case the appellant was the sole Person who was driving the motor bike when it Iell ovel and was cltiving at the time and the nalcotics were recoveted h'om both him ancl tire motor bike and as such he had a.tual knowledge that he was transporting the narcotics.

({) Under S.29 CNSA once the recovery has been proven as in \ this case the onus sllifts to the accused to show his it,lrocence in that at least he had no knowledge of the narcotics. l'he aPPellart has not been able to do so in this case. ln tlle casc oi Mehboob- Ur-Rehman V State (2010 MLD 481) it was held as rrnclel in this respect at P485 Para 14

" Llnder the protistotLs of section 29 of lhe C N.5. Acl ofice the reco|tery af cofitfibands rtns fin(le .l)-ol)t ,t pit fite cnr tuhich eas by tlen in control of lh! lltt) ippellants, the brrden to explnin tlw possLtssiott lELlpr nLlufil or cons!ruclit? u'ns all lle npptlhtLs to

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discllitge but neithet tlell lnoe led afl! e|lila'tcc in det'ence nor haoe appeated in disproof of tlu proseu Lliott tuidence under sectiotl 340(2), C|-P.C. thlLs the clnrgc laid upon tlvtll llns rcfinined. rmrebtrtled" .

(g)The motorbike which the aPPellant was dliving at ihe tiine of his arrest was recovered and Procluced before tlle Coult in working condition.

(r)That is it exhemely difficult and unjikely that such a large amount of larcotics woulL] have been foisted..Flrrihcrmore, if the police had wanted to foist the narcotic or the aPPellant fhey would have simply foisted one slab on hin lather tharl taking the time consuming and convoluted toute of foistillg so many srnallel r.acl<ets on him witl'. other Packets of rrarcotics insiLlc

(i)That the recovered nalcotics were sealed on lhe sPot aDd kept in safe custody at the malkana frorn the unle of their recovery to the time when they were taken for cheDical analysis r. two days later in sealed condition as confirmed by thc chemical report and no suggestion of tampering with tlle sarrc llas been made. The recovered nalcotics wele kept in the nrail<aln and then the next clay taken for chemical examillat trrl by PW 4 Chulam Mustacr ii sealed conditiotl. In the suprci..c court case of Zahid and liiaz Ali V State i2020 SCMR 59i;l ,r though tllis case concerned rape since it concemed the s.rir cllstod)' of certain swabs being sent to the chemical exa:riner t!r'cotrsiclet its findings to be equaliy aPPlicable to the salc r:uslocly of narcotics being sent to the chemical examiner tvlrich helci as under at para 5 in materiai part,

"Tlp cluntiul examiner's report produced hy llle lttll dr,lar slnl?s llnl "" scnls of 5pc(i t.ctt' .ctll i r cilenliul exafl1ifit1ltri1 ?pere receit)ed iitnct otd it LL',t:; the clrcmicnl e iner wllo hnd broken open tlv sttlj, tlercfore, tlg .antefitiofi af tlv petitionerc' lenntd counseL rcgarding lhe sIfe trallsnlission of lltr specintens is tlisco nted both by this facl ns ntell ns lty tlv fact thal fio question uas put regnrding lnnryeriu;q of the sairl senls."

O That the chemical report was positive ancl all Lhc r:ecluiled \ protocols werc cauieci out.

E) That all relevant police enh'ies were exhibited at trial.

(1)That the appellant has a Iong list of criminal cases againsl him oI a like nature aE evidenced by his CRO and as strch he is a haldened criminal.

(m)That although no independent mashir was associaled with the arrest and lecoverv of the appellant and narcotic 5.103 CI.P.C is excluded lor oflenses falling uncler the Conho- of Narcotic

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Substances Act 1997 by viltue of Section 25 of that Act. 111 this ) respect reiiance is placed.]n the case of Muilammad Hanif V The State (2003 SCMR 1237).Even otherwise it was helel in Shabbir Hussain's case (2021 SCMR 198) that due to Public aPatlly most citizens are not prePared to act as indePendent mashirs ln such like cases.

(n)That h dealing with narcotics cases the coults al:e exPected to adopt a dynamic approach and not acquit ihe accused on tecl'rnicalities. Ifl this resPect reliance is Placed on the case of Ghualm Qadir V The State (PLD 2006 SC 61) which held as uncler at para 8 P.66.

"We are not ngrceable tuith the contenlion aJ Llte leatned counsel becnuse t'nct ralfiins Llfit "Polpy Flotaers" rcere t'ound ling on the roof oJ the l'elticlc therefore, tlu techflictllily, |,ltich is being poutlcd aut W tlv leanled counsel, Tloulcl not be suffricttl to ficquit hint. bt additiofl to it ilt such-like cases Cottrts are supposeil to .lispose oJ the \ mattet with dqtamic apptoach, instead oJ' acquittitlS the drug pa,l llefi o11 tecl1dcaliLies, as it has been held ix 0993 SCMII 785) and (PLD 1996 SC 30s") (bold actded)

(o)No doubt it is for the Prosecution to Prove its case agaiNt the accused beyond a reasonable cloubt but we have also considered the defense case whicll is one oI faise inplication basecl on enmity. However no enmity has bern ploven and the DW's l\'('re cither relatives or lriends of the aicused and noa:iLiy only canrr lrr i-'lhe picture as a part oI tlle clefence case after 2 PW's haLl been examined which tends to suggest lhat the delence case was a complete fabdcation ar-rd an afterthought which h'hich we disbelieve in the face of leliable, eust worthy and co1ljir'lence inspiring proseculion evidence esPecially as no wilLless hacl any Ieason to falsely implicate the aPPellant.

11,. Thus, for lhe leasons mentionecl above, \,!e find ihat Lhe prosecution has proved its case beyond a reasonable doubt against the appellant and the impugned judgment is upheld and the aPPcal is dismissed.

12.The appeal is disposed of in the above terms

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