MOULA BUX S/O AANDAL (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH KARACHI

Present:

Mr. I ustice Mohammail Kaim Khan Agha Mr, I ustice Ar shail Huss ain Khan,

> CRIMINAL APPEAL NO.71 OF 2027

Appellant: Mst. Sakina @ Sikko wiJe of Fida Hussain through Mr. Zakr Hussain Bughio , Advocate Respondent: The State through Mr' Ali Haider Saleem, Addl. Prosecutor General, Sindh.

CRIMINAL APPEAL NO.72 OF 2O2I

Appellant: Mst. Fouzia @ Kanwal wile of Shah Jahanb through Mt. Zakir Hussain Bughi o, Advocate Respondent: The State through Mr. Ali Hai der Saleem, Addl. Prosecutor General, Sindh

CRIMINAL APPEAL NO.81. OF 2O2I

Appellant: Moula Bux son of Aandal through Mr. Zakiu. Hussain Bughio, Advocate Respondent: The State through Mr. Ali H aider Saleem, Addl. Prosecutor General, Sindh.

Date of Hearing 06.72.2027

Date of Announcement 08.72.2027

ru DGMENT MOHAMMAD KARIM AG I:- The a ppellants namelY Sakina @ Sikko, Fouzia @ Kanwal and Moula Bux have assailed the impugned judgment dated 12.01.2021 passed by the Model Criminal Court / Additional District and Sessions Judge, Malir Karachi in Sessions Case No.1813 of 2020 arising out of Crime No.3l9 of 2020 under section 6/9-C, C.N.S. Act, 1997 rcgistered at f)S Malir City, Karachi whereby the aJoresaid appellants were convicted for offences falling under section 9-C

t21 1t" of the CNS Act, L997 and sentenced to suffer R.I. for ten (10) years and fine of Rs.1.0,00,000/ (Rupees Ten Lac). In case of default in payment of fine they will su-ffer further S.I. for six (06) months in addition to main sentence. The benefit of section 382-8 Cr.P.C was also extended to the accused persons.

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2.The brief facts of the prosecution case are that on 25'09'2020 based on spy injormation at about 09:15 a.m at Road Naeemia Madarasa near Ghareebabad Goth Katchi Abadi Malir City Karachi a police party headed by SIP Moinullah Hashmi of t,S Malir City, apprehended the accused persons namely Moula Bux son of Aandal, Mst. Sakina wile of Fida Hussain and Mst. Fouzia @ Kanwal wife of Shah ]ahan' From the possession of the accused Moula Bux police recovered carmabis (chars) of 3020 Grams, from the possession of accused Mst.sakina police recovered Cannabis (Chars) of 3040 Grams and from the possession of accused Mst' Fouzia @ Kanwal police recovered Cannabis (Chars) of 3020 Grams in presence of Mashirs, hence the FIR was lodged.

3.After completing usual investigation formal charge was Iramed and read over to the accused, to which they pleaded not guilty and claimed to be tried.

4.To prove its case the prosecution examined 03 witnesses and exhibited numerous documents and other items thereafter the side of the prosecution was closed. The statement oI each of the accused were recorded t/ s 342Cr.P.C. in which they denied all the allegations leveled against them and claimed that they had been fixed by the police in this

false case as the police had enmity with accused Ms' Sakina' None of the

accused examined themselves on oath or called any defence witness in

support of their case.

Learned trial court after hearing the learned counsel for the parties

and assessment of evidence available on record, vide judgment dated above' hence 12.0L.2021',convicted and sentenced the appellants as stated this appeal has been filed by the appellants against their convictions' 6.Thefactsofthecaseaswellasevidenceproducedbeforethetrial court find an elaborate mention in the judgment dated 72'07'2027 Passed ,

t3l !rs by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellanb has contended that all the appellants are completely innocent and have been falsely implicated in r this case on account of the enmity of the police with Ms Sakina; that the vehicle which the accused were in when they were stopped and searched was not seized; that there are contradictions in the evidence of the PW's, that there is no evidence of safe recovery of the narcotics and for any of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. In support of his contentions he placed reliance on the cases of Khair-ul-Bashar v The State (2019 SCMR 930), Abdul Ghani v The State (2019 SCMR 608), The State through Regional Director ANF v Imam Bakheh& Ore. (2018 SCMR 2039), Nigar Ahmad v The State (2013 YLR 196) and Ghous Bux v The State (2004 Cr.Ll&13).

8.On the other hand leamed APG has fully supported the impugned judgment. In particular he has contended ttrat one of the appellant's was the driver of the car whilst the other two appellants were Passengers in the car; that they were all caught red handed on the spot with a huge quantity of narcotics; that the narcotics were kept in safe custody from the time of their recovery to the time when they were sent to chemical examination which lead to a positive chemical report and as such their appeal should be dismissed however he very fairly brought to this courfs attention the fact that the appellant's had been sentenced for longer than the guidelines laid down in Ghulam Murtaza v state (PLD 2009 Lah362). In support of his contentions he has placed reliance on the cases of lbrar Utlah v The State (2021 SCMR 128), DS Pakistan Railway, Quetta v Abdul sanar (2020 scMR 1001), Mushtaq Ahmad v The state (2020 SCMR 474) and, Ghulam Murtaza and another v The State (PLD 2009 Lahore 362).

g. we have heard the arguments of the learned counsel for the parties, gone tluough the entire evidence which has been read out by the learned counsel for the appellants, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.

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10.After our reassessment of the evidence we find that the prosecution has proved its case beyond a reasonable doubt against all the appellants for the following reasons:-

(a)That the FIR was lodged with promptitude giving no time for concoction and the 5.161 Cr.PC statements of the witnesses were also recorded promptly which were not signilicantly improved upon by any PW at the time of giving evidence.

(b)That the vehicle in which the appellants were traveling in and where it would be was based on spy information which clearly mentioned that women would be in the car which lead to the calling of lady police officers in order to search the ladies, This spy in-formation was borne out by the presence of the ladies with the narcotics in the car when it was stopped by the police which corroborates the prosecution case in terms of its reliability

(c)That the arrest and recovery was made from each of the appellants on the spot and the appellants were all caugirt red handed with the narcotics by the police whose evidence fully corroborates each other in all material respects as well as the prosecution case' It is well settled by no* that the evidence of a police witness is as relia-ble as any other witness provided that no enmity exists between them and the accused and in this caie no Proven enmity has come on record against any police officer. Although the complainant ultt itt"d thit a complainant had been made against him no such compliint was exhibited or any other document produced to support such enmity or the nature of itte complainant- Even otherwise i{ the complainant only had an enmity with appellant Ms Sakina why would he fix two other irmocent Persons in a false case and why would he foist such large amounts of narcotics on them which are usually not readily available which does not appeal to logic' reason or cofiunonsense and as such the police had no reason to implicate the appellant in a false case' Thus we believe the police evidence which is corroborative in all material respects' Reliance in this respect is placed on the case of Mustaq Ahmed V The State (2020 SCMR 474)

(d)That there are no major conbadictions in the of the PW's and it is well settled by now that minor contradictions which do not effect the "rla"r,."

materiality of the evidence can be ignored'- In this respect ,"liut." is placed on Zakir Khan V State

(1995 SCMR 1793).

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(e)Most significantly the narcotics were recovered iro* appetlants whilst sitting in the car and which driven by one of the appellants and the *as being-were narcotics found on all the appellants when the c.u was stopped and thus there is no iloubt that the appellants iail actual knowleilge of the narcotics which were being transported. In this respect in the similar case of Niair rc;n V State (1998 SCMR 1899) it was held as under, 'We haae gone through thc ettidenu on record- and fnd tlut the petitioners had the chatge oJ oehiZle for a long iourney statting ftom Peshawar and terminating at lGrachL They hnd the dfuting liccnses also. As being petson incharge of the ttehicle for such a long iourney, they must be saddled with the necessary knowtedge with regatd to the ttehicle anil its contenti The ptobabilities or the presumptions are all dependents on the citcumstances of each case and in the present case the circumstances fully establish their knowledge anil atrtareness.of 'the-contents and their explanatbn showing the ignorance actually sttengthms th'at conclusion rather than weakening it".

In this regard reliance is also placed on Hussain Shah and others V The State (PLD 2020rc 132) which is similar to the facts and circumstances of this case'

Furthermore, Under Section 29 CNSA 1997 once the recovery to has been Proven as in this case the onus shifts to the accused of the show his innocence in that at least he had no knowledge in this narcotics. None of the appellants have been able to do so case.InthecaseofMehboob-Ur-RehmanVState(2010MLD 481) it was held as under in this respect at P485 Para74

"Llnder the prwisions of section 29 of the C'N'S' Acf once the recoaery of conttabands was made fiom a

ptioate car whicil was by then in cont.rol of the two 'ippellants, the burden to explain the posxssion iiether actuol or constructioe was on the appellants to discharge but neither they h1;ae t'4 o:y eoidence in i\rn tno, haue appearedin disproof of the prosecution *idrnu under seciion 340(2), Cr'P'C' thus the charge Y laid upon thcm has temained unrebutted" ' (fl That it would be extremely difficutt to foist such a i*g" u*o"", of charas beingin total 9 KG's (around 3 Kir""or"red from each appellant) as mentioned in Mustaq Ahmed's case pupra) and The State V Abdali Shah (2009 SCMR 291)'

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(g)That there was no delay in sending the chemical report for analysis which turned out to be positive.

(h)That the recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the same has even been , made. The narcotics were sealed on the spot, remained sealed in the malkhana before being transported to the chemical examiner in a sealed condition as per the chemical report by PW 3 Malook Channa with the required protocols being carried out. In this respect reliance is placed on the Supreme Court cases of Asmat Ali (supra) and Zahid and Riaz Ali V State dated 03-03-2020 (unreported) in Jail Appeal No.172 of 2018. Although this case concerned rape since it concemed the safe custody of certain swabs being sent to the chemical examiner we consider its findings to be equally applicable to the safe custody of narcotics being sent to the chemical examiner which held as under at Para 5 in material part;

"The chemical examiner's report produced by the lady doctor states that the xals of specimens sent for chcmial examination were receiaed intact and it was the chemical examitur who had broken open tfu seals, therefore, the contention of the petitioners' leamed counsel regarding the safe transmission of the specimens ii discointed both by this fact as well as by the fact that no question was put regarding tampeing of the said seals."

(i)That although no independent mashir was associated with the arrest and recovery of the appellants and narcotic 5.103 Cr.P.C is excluded for oifLr,ru" falling under the Control of Narcotic Substances Act 1997 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).Even otherwise it was held in Ibrarullah's case (Supra) that due to public apathy most citizens are nof prepared to act as independent mashirs in such like cases.

its case 0 No doubt it is for the prosecution to prove doubt but igainst the accused beyond a reasonable *e have also considered the defense case which is one -r of false implication simpliciter and note from the FIR that Ms Suklnu has previously been arrested in various similar caset that none of the appellants gave evidence or oath or called any DW to rebut the prosecution case in the face of overwhelming prosecution evidence as discussed above we disbelieve the defence case of false implication'

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11.Thus, for the reasons mentioned above, we find that the prosecution has proved its case beyond a reasonable doubt against the appellants and as such their convictions in the impugned judgment are upheld and the appeal is dismissed in this respect.

72.We note however that each of the appellants was found to be in possession of a little over 3 KG's of Charas and were each sentenced to 10 years RI with fine however as Per sentencing guidelines in Ghulam Murtaza's case (supra) the appropriate sentence was RI for 6 years and six months along with a fine of RS 30,000 or in default thereof further SI for 6 months more as such we hereby reduce the sentences handed down to each of the appellants from that mentioned in the impugned judgment to RI for 6 years and six months each along with a fine of RS 30,000 each or in default thereof further sI for 6 months more. The appellants shall have the benefit of 5.382 (B) Cr,PC and any remissions available to them under the law.

13 The appeals are dismissed except in terms of modification in sentence as mentioned above.

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