Syed Nawaz Khan & Another (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH, CIRCUIT

COURT

HYDERABAD

Before:

Mr. Justice Mohammad Karim I(han Agha Justice Mrs. I(ausar Sultana Hussain

Cr. Appeal No.D- 2lO of 2OI9

Syed Nawaz Khan and another

Verstts

The State

Appellants : Syed Nawaz throtrgh Mr.

Khan S/o Moosa I(han Advocate Agha I(ousar Hussain and Syed Nawaz S/o Gu) Muhammad

Respondent : The State throtrgh Mr. Abdul Wal-reecl Bijarani, Assistant Prosecutor General, Sindh

Date of hearing 14.O3.2023

Date of judgment 16.03.2023

JTJDG MENT

MOHA MMAD KARIM KHAN AGHA. J.- This criminal appeal IS directed against the judgment dated 07.tl.2}lg, passed by the learned Additional Sessions Judge/Special Judge(N) / Moder criminat Trial Court, Jamshoro at Kotri, in Special Case No.54 of 2019, arising out of Crime No.2 of 2019, registered at police Station D.I.B Hyderabad, under section 9(c) of control of Narcotic Substances Act, 1997 (CNSA), whereby the appellants Syecl Nawaz Khan S/o Moosa I(han and Syed Nawaz S/o Gul Muhammad have been convicted u/s 6,7 & 8, 9(c) CNSA and sentenced to suffer imprisonment for lile and to pay fine of Rs.500,000/-, each. In case of default in payment of fine

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they were directed to suffer simple imprisonment for 03 months lnore (the impugned judgment). Benefit of Section 3g2_B Cr.p.C. was also extended to the appeliants.

2.The facts of the prosecution case as disclosed in the FIR, lodged { by the complainant/Excise Inspector piyaro Khan Rind on lg.O4.2O-J at 7:oo PM with police station DIB Hyderabad, District Jamshoro are as under:-

"That he (complainant) a]ong u_tith AETO Altaf the incharge Excise-Narcotiit ,iiil" iiizil Hussain Kalhoro, sqroa, Mahboob Jessar and other stay nc ifiii'*ii.noyo, Excise rnspector Solangi, EC Anwar Sol:!1s!, aC au"y iii*i EC Shahjahan u. Meer Hassan, EC thyl."y Shabbir, EC Sh;hid natoch-Bc"ilaU Sauar Moryo, EC Bakhshal Solangi, EC Hajt KhanKeeio "f "ia i"nlil"tiln ,"""ip,t uide entry No.36 at 0S:30-plrl in Cor"**iit ", *oAl" no.CS_9IO0 left p.S and aniued at prace informed at Excise iii i*"otiu check post near ,_l- -:"f:r Highutay Jamshoro at 4:0O pM and after some time, TiIl spy truck No.K-1i66 taas coming from Hyderabid, uthiin _;

Theg noticed that tu'o nersons tuere ";";;';;'. boird.ed in tt, utho *"r. iij[il"a partg and got atighted-them and slttlng on drluer seat dGctosia nt" ncrme ason 1b^::!_rY,::^Olainant person tnquiry one Sged. Nanuaz ii Khan s/o Moosa Khan Munuat pathan and. another persot.L disclosed" his name_ as sged. Nq.waz s/o Gur Muhammai Murwat pathan. Due to no.n-au_ailabilitg of piuate mashirs, EC Attah Bachayo and ei bnanJ.aran utere appointed as mashir and in thelr presence, complainant conducted personal search Nanoaz Khan and recoueied cash Rs.200O/ in from accused diier Sged tuto anrrency notes each

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>Aea N aLuaz one.oristnar cNrc and. from phyiicat 1:dcomplainant recouered cash Rs.JSOO/ and ".or.i, .f ;;;;;;

originq.t CNIC.

paftA then conducted search of truck ;;;;i T!:,:.?T!!"r"ant cautr.A tneA recouered 14O packets dulg urapped uith ""df;; plastic panni and each packet *o, -op"nJi and checked color iellout containing chars and each packet was uteigLLed. separatelg fouid complainant party u,htch.became 10o0_gram (l-rcd itat stiodio ;i-;h" I4O-KG chars. The said. chars was sealei in piastic patchkas. bi In three patchkas, 40/40 KG chars was sealed and. ii one patchka 2T_kg chii utas sealed for ch.emical examination. The iomplainant "further conducted search of truck of su.titch board etc but notniig iis recouered. TLe truck utas also sealed on spot and. the compiainii prepared such memorandum of anest and recouery in preience aboue named mashirs u.tith tietr respectiue signaiures.' Thereaftei, of accused and recouered case propertA were broight at Excts;e Ciffrce L Jamshoro at Kotri u.th.ere compliinant lod.ged tie FIR A"naii State." "" E

3.During investigation, Investigating Officer recorded 16l Cr.p.C. statements of the PWs. Samples of the substance nafcotic / substance were sent to the chemical examiner and positive chemical report was received. on the conclusion of investigation challan was

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submitted against the aforementioned accused/appe,ants for offence u/s 9(c) of CNSA.

4' The Trial court framed charge against accused to which they pleaded not guilty and claimed to be tried. At triar, the prosecution examined 03 pWs and exhibited numerous documents and other items. The Statements of the accused were recorded u/s 342 Cr.p.C.

wherein they denied the prosecution alregations revered against them and claimed their false implication in this case; however, they did not examine themselves on oath nor lead any evidence in their defense.

5' Learnecr trial Judge after hearing the learned counsel for the respective parties and evaluating the evidence available on record, convicted and sentenced the appellants as set out earlier in this judgment.

6.Learned trial Court in the impugned judgment has already mentioned/discussed the evidence of the prosecution witnesses in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellants has contended that the pro secution case is highly donbtful;

that it is lacking in material parti culars and same is full of contradictions, inconsistencies and same have caused a serious dent in the prosecution case; that the narcotics were foisted on the appellants; that it was not possible for the truck to have come from peshawar and not been stopped at any check post before reaching Hyderabad; that there was no independent mashir in violation of S. 103 Cr. pC; that the appellants had no knowiedge of the narcotics in the truck; that the appelants had been fixed by the police as one of them hacl entered into a love marriage which had annoyed his father in raw; that the complainant was also the IO and as such for any or aii of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt

B. On the other hand learned A.p.G has fully supportecl the impugned judgment ancl contended that the prosecution had fully proved its case against the appellants ancr that the narcotic rvas kept

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in safe custody from the time of its recovery unt, trial and it would be difficult even not impossibre to foist such rarge amount of charas on the appellants and as such he submitted that the appeal should be dismissed as being without merit.

In support of his contentions he placed reliance on the case of Lraquat Alr and another v The state

(2022 SCMR 1097).

9.We have carefully considered the arguments of the learned counsel for the parties, scanned the entire evidence and revie*,ed the relevant case law.

10' After our reassessment of the evidence we frnd that the prosecution has proved its case beyond a reasonabre doubt against the appellants for the following reasons:_

(a)That the FIR was Iodged with prornptitucle giving no time for concoction ancl the S.161 Cr.pC statelnents were recorded promptly which were not significantly improved I upon by any pW at the time of giving eiidence.

(b)That the arrest and recovery was made on the spot and the appellants were caught red handed with the narcotics in the truck which one of the appelJants was dr.iving whilst the other was his passenger by ihe police whose evfuence fully corroborates each other in all maierial respects as well as the prosecution case. There evidence *u, ,roi dentecl despite a lengthy cross examination. It is well settled by now that the evidence of a police witness is as reliable as any other witness providet-l that no enmity exists between them aud the accused and in this case the appellants were unable to prove through evidence any between the police "rrmity witnesses and tl.re appellanti. Thus we believe the police evidence whiclt is corroborative in all material respects. Reliance in this respect is placed on the case of fvlushtaq Ahmad v The State (2020 S-CMR 474) wl-rere it was held by the Supreme Court in material par.t as uncler at para "Proseattiott cnse is hinged upott tle stfiteDrcnts of Amnir Mnsood, TSI (pW_2) nnd Alticl l Huxnin, 336-C (PW-j); being oficints of lte Repfulic, they do not seem ti ltiz,e nn nxe to grincl ngninst the petitioner, intercepterl nt n public plnce during routine senrclt. Contrnbnncl, c.onsidernble rymrtily, cnntnt be possibty to -itt foisterl fnbicnte n fnke chnrge, tint toi, toithout nny _nppnrent reoson; tolile ltmrishing aidence, both tle ruitnesses rerunined tlroughout consistent nntl confrlence inspiing nnd ns srclt cnn be relied upon toithotft -n deruur."

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(c)That the appellants were the clriver and passenger of the truck respectively which was sroppecl If".ifi*fly being "f* by-a spy informJ.';;;';h""ticorics recoveredllt l^"_,I*d from secr.et cavities in huck which were were securecl and sealed on rhe sDot. The secrere woulc'l explain Ilo*' the truck rvo, ..;ii;; in the truck Peshawar to Hyderabacl wimoui ufri"'io' pass from 'na."cotic, discovered but for the spy infonnation tti- t eiug probably also passecl througi the tr.uck wouLl Hy.t"ru;;i.

(d)That there are no material contradictions in the e'iLre'ce of the PW's and exltbits ancl it is well setrleJ i), rlorv tllat minor contradictions which ao .rot uffua- tti"' nl,ateriatity of can be ignored. ln this respect ruiion." lh"jr.tgu5u on Zakir Khan V State (1995 SCMR 179'3)_ i, plo."A

(e)That most of the relevant police enhies have been exhibitecl including those relating to cleparh,rre, arrival and safe custody of the narcotii and nrashi..ru*u recovery which was preparecl on oi urrest and the spot which all supportr/ corroborate the prosecution case.

tfl The content.ions of defence counsel that the complainant and the investigation oin".. of the case tJ.,. same people therefori hi" .ui;;;;. 1.,: upon relred tannot be

and its benefit must be given to the appellant. This contention has no u.s- th"." i" .ro prohibition in the law for tf,"force pofi". investigate the case lodged by f,i- pJLriJ.a officer to ls no. proven enmity or ill will betwein the police ,h.." t-h", ano the accused which as already mentioned officer has been proven in this case. In thi-s respect ."lian"enot placed on rhe case of Zafar v. The sti"-fzbos is scNan 1254) wherein it is held in para_ I l u" "So f.ar as the objection of the leamed counsel for the appltcant that the Inuestigation Offtcer -is the complainant and the uitnesi o1 the oicurrence recouery, the matter has been dealt utith by aii this Court in th.e case of State through e,aiZ"ii_ General Slndh v. Bashlr and othirs pLD l;;, SC 4O8, u.therein it is obserued that a Coltce Olfiie not prohibited under the laut to be complaina;t i if he is a ruifness to the commission of ;i;;.;;"";; als.o to be qn Inuestigating Offi.cer,'so";bnj" as it iii not in. ang wag prejudice the accui'ed_ p.r"oi. 'l'hough the Inuestigatton Offrcer and other proseantion witnesses are employees of A.N,F,, they had no animosity or rancor agaiist tni i pl.ant such a_huge quantitg of narcotic "ppeulii upon rum. The defence has not produced ^itZriol any iuch euidence to establish animosity qua the proiecatioi u;ftnesses. All the pros""u{ioi uritnesses naii deposed in ltne to support the prosecution i,nJ uitnesses haue passed. the test of lengthy "o"".crosi_ exa_mination but.the defence failed. to maie iny d.ent tn the p.roseattion story or to extract ony *6t"iol contradiction fatal to the prosecutton iase. The prosecution lns been succesEful to bring home the gutlt of the appellant to the hilt ba CticinO oculi,

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recouery narcotic mateial, the Chemtcai 7.::"?t, L-xamtner report _of G.1, ExLp.3. The leamed for the appellant has not been able t;-p;;i;;;;';;; "ouro"i enor of law in the_ impugned judgment;;;'i;;;;;. ts unexceptionable, Duen otherwise, mere st;t;;" ;f one as an olflclal would not atone preiuatci- competence of such a.dfnesses untit til proued ani u;/es; he r.i to be lnterested., uho has iZ " ^oiir", fals.ely implicate an accused o, no.. priuioii" tuith the person inuolued.. Retianci ""hti, is;i;;;;;';:;".

case ofFarooq a. The stdte (2008 siii-b7;f.'"

(g)The narcotics were sealed at the time of r.ecovery and kept in the malkhana for which the person *nl narcotic was examined, the person wl_ro lJ.Ju"r"a tf.," tleposited the narcotics in the malkhaua has teen exarninecl, ihe head of the malkhana who was also the -r"pfui"u"i'has been examinec'|, the person wl-ro took the narcotic to tlre chernical examiner o1e day later l-ras been examined and all the relevant malkhana entries have been exhibited and thus safe custody and safe hransmission of the narcotic has been proven from the time it was recoverecl until the time it was sent to the chemical examiner. Even no suggestion of tampering with the narcotics was made by th!"appellant during cross examination.

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(h)The chemical report proveci to be positive and all relevant protocols were followed.

(i)That is extremely clifficult for such a large arnount of narcotics to be foisted on the appellants whicli is not reaclily available with the Excise poliie. In tl-ris respect reliance is placed on the cases of Mustaq Ahmed,s case (Supra) ancl The State V Abdati Shah (2009-SCMR 291).

f) Being the driver and passenger of the truck whicl.r was linked attual knowledge of the narcotics can be founcl especially as the the amount of recovered narcotics was massive (140 i<G) which was hidden in secret cavities of tl.re truck. In tlris respect reliance is placecl on the case of Nadir Khan V State (1998 SCMR 1899) where it was helcl as under, ".We hnue gone throttglt the ettitlence on rccord nttrl fttd t.lnt tle ltetitioners lnd tlt chnrge oJ ztelicle journey stnrting from pcslnttir irl tcnuin for n iottg ing nt Kornchi. 'fley hnl tle drit,ing licenccs nlso. As b-eing person inchntge of the aehicle for suclt n long journey, they nust be saildlerl iith tt,, ,rccess ,y knozoledge zoith rcgnrd to the aehicle auil its contents, Tlrc probabilities or tlre pyesu tptions are all dependents on the ciraunstatices of'each case and _itt tlre present case the circnnsiatces fi ly estal:lish their knozuledge and nzunrenes, oi tti, cotlte,,ts and tlrcir erplanatiou sltozuittg the igrtorance acttally strcr,gtlre,B that cotilusion rather thnn zueakening il,'. (bokl ar{tted)

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(k)Furtlrermore, under Section 29 CNSA L99Z oncethe recovery has-been proven as in this case the onus shifts to the accused to sl-row his innocence in that at f"urt f.," f,rJ .,o -itr""ariuu, inowteage of The appellants *flo *"r" 11"-^lur.olt.":

passenger in the truck have una not been able to clo so in this case as the evidence shows tlrat the ,,u..oii., '.u.oru.ud -,iu"."u

from a rruck which was U"i"g a.iu;r, which a huge quantity of narcoticsbyiraa tn""uip"tr.nt" in Ueen secre y hidden and as such r* iuch ttr"y we...r"Shr;A and arrested on- the spot along with handed the narcotics which were recovered from secret caviiies in the truck which they were driving and connected to. In this r"sfe.t',=tiance is placed- on the case of Mehboob_U._n"frrnr.,'V'Siate MLD 481) where it was held u, ,"a", i,., il.,i. r."rp-"., at p4g5 Para 14

"Unde.r tle prouisions oI section 29 ol tte C.N.S. ,lcl once tlrc recoperlJ of contrnbnntls tpns nrirle fronr n prionte cnr wliclt u,ns tlrcn in W control of tlrc it,o nppliln,rtr, uE t rtrderr to explnin tle posession tplrctlrcr..ctunl or constructiue ruas o tle nppellnnts to disclnrpe but neitler tley hrue led nny a,irleuce in defertce nppeared in tlisprool of tle prosec, ion'nidcnce iir lnae untler xction 340(2), Cr.p.C. tlnts tle clnrge lnirl rrpon tltern lns renninecl unrebu ttetl',.

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(l)That although no independent nrashir was associated with the arrest and recovery of the appellants and the narcotic this, is not surprising because peopie despite being askecl, as in this case, are reluctant to b; in;olved i,.,.rr"" ioncerning narcotic dealers. Even otherwise, 5.103 Cr.p.C is excluclec.l o_flgT:r falling under the Conh.ol of Narcoric Substancds lor Ac-t 7997 by virtue of Section 25 of that Act. In this respect reliance is placed on the case of Muhammad Hanif V The State (2003 SCMR 1237).

(m).That in dealing wi tl-r narcotics cases the courts are supposeti to adopta dynamic approach ancl not acquit the accusetl on technicalities. In this respect reliance is placed on the case of Ghualm Qadir V The Siate (pLD 2OO6iC Or; under at para 8 p.66. -ni.n lr"ta u, "We ny.not tgreenltle tpitlr tle conlentiott of tlte lenrnetl couttsel becrurs ,,poppy fnct reunins lhnt Florrorr,, tuerc Jound lying on the roof of tlte uciricie tlcreforc, tlrc teclmicnlity, tplriclt is lteing- pointett out by tlti learnerl couttxl, toouhl not be suffcieui,t to ncqtit Ifiti. In ntldition to it itt such-like cnses Coutts are'atpposetl to dispose of the uatter utitlt dy-namic appiiacn, insteail oJ acquitting the ilnrg padr ers ot teciuticalities, as it lns been held in (1993 SCMR 7BS) anit (pLD 1996 SC 305.). (botd added)

(n)No doubt it is for the prosecution to prove its case against the accused beyond a reasonable cloubt but we have also considered the defense case of the appellants is in essence that they were both pickecl up at u ,oui sicle restaurant ancl fixed in this case as one of tl.re appellants had enterecl into a

Iove marr th'iratl a nnoyecl his nui ttlu, orixg^u -1i or tr," t' srrJ :;,li J." "'"' in Ia w' However "uiat]lirn,.|...

frti#fit,*ffi-,ii',*:i#'iu;',l'",ffi ;|}:1"'j.':,.,,::u -uoi,s" apperrants to aepose difficurt r", i"r"."ir.ri!'oyance of her father r.]'^t^I:"

il, j::"# i+L.tf :=" i: :*i;:l;,,:nf :*,:",:d "r' ;;;il;,lil: :."i,",i,"J, " ";J1," i"j#,:T::: t ;'",

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1,7. Thus, for the reas rincr rhar rhe prosecution has proved it, ",," ,;"# l::H:1,:r:::r:"

impugned juclsment appellatrts, the is upr,era ancr the appear is a,:,T:::.""

12.The appeal is disposed of in the above terms.

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