AKHTAR ZARIN S/O SHAH ZARIN (Appellant) VS THE STATE (Respondent)

\ a,'-r-a\q-9 D?tJ BS-i,c-l : (/e.;-l..-l ?,o), (\-.-_ k *-c;- T.;l n. 2r,t vt?

Ci]R TIFICATT' OT. }1.U LVUT rl !

'I.

t/

* tk t'n- Z-""" t/t' 1r'- < b-lL

SINDII I]IGII COURT

Qp:,,pgj tion <tf llcnch.

r'1v 3. A4 J-.u**; ./ Arr',i,r LIL; A\"L+

Mv..i. M r. [^.-.--'t*' "i Dfltes of hcarilg:, l<l - a >-'tt"

Decidcd r:n l:j Z'1 *a t-.>*

(u)Judgment aPProvcd for reporting. v Ycs t

CERTIFICATE

t/Orrlcr is bascd upon or cnuuciate's o.principJe Cerlilicd tha! tltc jLrtlgnrent r^i-;ia"Iij.,'*'qrliii8,, oi fn,, ui,irf, is of fiist inrprcssion/distiogttishcsi "r ovcr-rulcs/ r,)vcrses/cxplains a prrrvicus decision' lstrikc out whicltever is not applicable a

NO'I'E:-(j) This slip is only to tre l,scd when some action is to be takcn' (ii) Ii thc slip is used, the llcadcr must attaclt it lo thc top of the llrst pa8e of the iudgment.

(iiil Rerder rnust ask the Judge writirg thc Judgrncnt whctber tbc Judgment is approved :ior reporting.

(iv.r ]'hose dircctions wtrich aic not to be used should bc deletcd' SGP., Kar.--L (iii) 1459-5,000'-6'93*-T,5.5.

lor

Date to

c. heari Telephone No. 021 - 9923088:l ad,ou

OFFICE OF THE SUPERINTENDENT CENTRAL PRISON KARACHI

5 No.JB/ il113L

.2 N 2/ Datedth:.06.2014

,l 16\' Tlte Assistant Registrar (Criminal), Lql Honorable Lligh Court of Sindh, Karachi, ruis\r.

SUBJECT: JAIL APPEAL OF LIFER CONVICTED PRISONER

AKHTAR ZARIN S/O SHAH ZARIN CONFINED IN

CENTRAL PRISON KARACHI.

I have the honour to enclose herewith jaii appeal (in triplicate) submitted by tlre above named convict for further necessary I disposal.

I

tL Ltut44

SUPERINTENDENT

CENTRAL PRISON KARACI{I

a'JLl Na-.ek''.uS {z"o\'4J (-'." G,r

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal |ail Appeal No.215 of 2014 Present:

NIr. I ustice Mohammarl K arint Khsn Aqlrn Mr. Nluharnna Saleen lessar,

I

Appc.llant bv Akhtar Zarin S/o. Shah Zareen through Mr. Ajal-r Khan Khattak, Advocate.

For State: Mr. Muhammad Iqbal Awan, Deputy Prosecutor' Ceneral.

Date of hearing: 19.02.2020 Date ttf announcement 27.02.2020

IUDGMENT

Mohammad Karim Khan Agha, ).- Appellant Akhtar Zarin Khan S/o. Shah Zareen has preferred this Criminal jail Appeal against the impugned juclgn.rent dated 30.05.2014 passed by the learned Special Court-ll (C.N.S.) Karachi Camp at Central Prison, Karachi in Special Case No.92 of 2011-, F.l.R. No.27 of 2011 f U / s. 9/ C, C.N.S. Act, 1,997, P.S. CID/AEC Sindh, Karachi whereby the appellant has been convicted for offence under section 6 punishable uncler section 9-C CNS Act, 1997 and sentenced to suffer Life lmprisonment and fine of Rs.500,000/- (Rupees five hundred thousand only). In case of default in payment of fine he was ordered to suffer further Rigorous Imprisonment for three years. Benefit oI section 382-B Cr,P.C. has also been extended to the appellant.

2.The brief facts of the case as per FIR are that on 26.01.20'l"l Complainant SIP Muhammad Shoaib Qureshi of CID,TAEC Sindh along with ASI Taritl Mahmoocl, HC Ali Faisal, HC Syed Younus Ali, HC Khalici Yaqoob, PC Banaras, PC Raiab Ali, PC Muhammad Kashif, PC Punno Khan, PC Nasim Ahmed anci PC Khan Rehman left PS in official vehicle for patrolling. During patrolling they received information that from Khyber Pakhtoon Khawa two vehicles are coming to Karachi in which some persons were bringing huge quantitv of

I

narcotics and ammunitions through Super Highway towards Karachi. On such information the complainant's party reached at Toll Plaza Super Highway, Karachi along with police party ancl spy informer at 0130 hours and held Naka before the gate of Tool Plaza, Karachi and started checking the vehicles which

a0s

were coming from Hyderabad. They checked several vehicles when two white cars passed the Toll Plaza and the spy informer pointed out that these are thc same cars which were carrying the narcotics, arms and ammunition and thus the complainant party signaled the said cars to stop which leacl to the culprits in the first car firing which fire hit the informer Sabir which lead to the police returning I fire in self defence. The tyres of the first car being registration No.V-3199 burst ancl stopped while the second car sped away. In the Iirst car one lady was sitting on rear seat in an injured condition and one person was sitting on the driving seat. The person in the driving seat got down from the vehicle w.ho tliscloserl his name Akhtar Zareen 5f o. Shah Zareen and so also disclosetl the injured lady's name as Gulshan Bibi wife of Sher. On search of the accused Akhtar Zareen one pistol 30 bore with 2live rounds was recovered. Thereafter search of the sairl car was conducted in presence of private witnesses namely (i) Maroof son of Sarllar and (ii) Shamshad son of Maroof who were present there ancl six KK, 7 T1' Pistols, 2023 rounds of KK, 80 packets of Charas consisting of rocls we.ighing 80 Kgs were recovered from secret cavities made in different parts of the said car and inside the mutlguards made with aluminum. The recovereci 80 packets of Charas were sealed in two white cloth bags on the spot, The recovered arms ancl ammunition were also sealed on the spot, f

3.It is averred in the FIR that memo of arrest and recoverv was preparetl on the spot at 0145 hours on 26.01.2011. Thereafter the recovered contrabancl Charas and ammunitions were sent to CID CTU, Garden, Karachi through ASI Tariq Mahmood and injured lady and informer were shifted to hospital through Ambulance and the complainant brought the accused Akhtar Zareen and HC Syed Younus who were also injured to Jinnah Hospital, Karachi. Complainant SIP Muhammad Shoaib Qureshi prepared statement under section 154 Cr.P.C. which was sent through HC Ali Faisal for lodging the FIR which rvas lodged being Crime No.27 /201'l under section 6/9-C, CNS Act, 1997. During investigation I/O Inspector Malik Muhammad Adil inspectecl the place of incident and prepared Memo of site inspection and sent the recovereel narc()tics for chemical analysis. After completion of investigation I/O filed challan/final report under section 173 Cr.P.C. before the Court of law against accused Akhtar Zareen while Gul Zaman son of Sher Rehman was shown as absconder.

xoL

4.Thereafter charge was framecl against the accused to which he pleari not guilty and claimed trial.

5.The prosecution to prove the charge examined 03 PW's who exhibitetl various documents ancl other items in support of the prosecution case where after the prosecution closed its side. The statement uncler section 342 Cr.P.C. of the accused was recorded in which he denied the allegations leveled against him and claimed false implication. However, he did not examine' himself on oath or call any DW in support of his delense case.

6.Learned Special Court-II (C.N.S.) Karachi after hearing the le.arnecl counsel for the parties and assessment of evidence available on recorcl, vicle jurigment dated 30.05.2014, convictecl antl sentencecl the appellant as stateri above, hence this appeal has been filed by the appellant against his conviction.

7.The facts of the case as well as evidence producecl before the trial court find an elaborate mention in the impugned .lutlgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.

Y 8. Learned counsel for the appellant has contendecl that the appellant is completely innocent, that he has been falsely implicateti in this case by the police because the IO had enmity with him as his wife had filed a case against the lO although he admitted that he was arrested at the scene of the inciclent, that the police encounter was fake, that the narcotics hatl been foistecl on him, that there was a delay of 6 days in sending the narcotics for chemical analysis, that there was no evidence that the narcotics had been kept in safe custody before sending thern to the chemical examiner and that for any of the above reasons thc. accusetl shoul<l be acquitted of the charge basetl on this court extending to him the benefit of the doubt. ln support of his contentions he placed reliance on Ikramullah V The State (2015 SCMR 1002) and Muhammed Ayoub V State (un reported) of this court dated 03.09.2019

9.On the other hand learned Deputy Prosecutor General has fully supported )- the impugned judgment and contended that that the accused was arrestecl on the spot, that the narcotics were recovered from the vehicle wllich he was clriving anl1 which belonged to him, that the chemical report was positive, that thelr was evidence of safe custody of the narcotic ancl as such the prosecution had proved

I

)"b?

its case beyonci a reasonable tloubt and the appeal should be ,,lismissecl. [n support of his contentions he placed reliance on State through Regional Director ANF Peshawar v. Sohail Khan (2019 SCMIT 1288), Shah Muhammad v. The State (2012 f'SC (Crl.) 772), Salah-ud-din v. The State (NLR 20i1 Criminal 4tt5), Mian Muhammad Latif and 2 others v. Muhammad Aslam Nagi, Chairman Baking Tribunal Lahore and another (2002 CLD 923), Ghulam Muhammad v. Member (fudicial-Il!, Board of Revenue Punjab, Lahore (2005 CLC 1512), Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar (PLD 2009 Supreme Court 39), Gul Badshah v. The State (2011 SCMR 9tl4), Arshad Hussain v. The State (2011 SCMR 1400) and Begum Nusrat Ali Conda v. Federation of Pakistan and others (PLD 2013 Supreme Court tl29).

10.We have heard the arguments of the learned counsel for the partics, gone through 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.

11.After our reassessment of the evidence we are of the view that the prosecution has proved its case beyond a reasonable doubt against the appellant r for the following reasons:-

(a)That the FIR was filed promptlv keeping in vicw the encounter, thc need to take the injured to hospital, the time taken to search anel lveigh the drugs and as such any slight delay in lotiging the FIR has been fully explained and thus there was no time for the police to cook up a false case against the accused who in any event was arrested on the spot by his own admission.

(b)That the arrest and recovery was made on the spot ancl the appellant was caught red handed with the narcotics bv the police. Ihe appellant has also admitted his presence at the spot, He has claimocl that the police have falsely implicated him since his wile hacl filed a case against the IO. We do not consider this defense believable for the A reason that if the IO wanted to fix the appellant they would have fixetl his wife instead as she was the one who filed the conrplaint ancl not thc appellant, His wife did not come as a DW to support this position nor did he exhibit any document showing that the appellant's wife hae{

).oB

made any complaint against the IO. Irurthermore and more importantly, the evidence of PW 1 Muhammed Shoaib who is the complaint is corroborated in all material respects by PW 2 Muhammed Maroof who was an independent witness who was behind the accused car at the toll plaza and acted as mushir of arrest and recoverv and had + no axe to grind with the accused ancl hacl no reason whatsoever to falsely implicate the accused in this case. In our view he was nt:t a chance witness as he was travelling from Hyderabad to Karachi and was stuck behind the accused vehicle at the Karachi toll plaza. Thus, we have no reason to disbelieve this PW.

(c)That even the informer who was present with the complainant party and who pointed out the accused's vehicle was shot and killed during the operation which shows that the police had gone to the specific place as mentioned by the informer.

(d)That there are no major contradictions in the evitlence of the I'W's and it is well settled by now that minor contradictions which do not effect the materiality of the evidence can be ignored. In this respect reliance is placed on Zakir Khan V State (1995 SCMR 1793).

(e)Most significantly the narcotics were recovered from secret cavities in the car which was ownecl by the appellant as admitted in his 5.342 CI.PC statement and he was driving at the time of the arrest antl recovery from KPK to Karachi as per spy information. The car was recovered along with its key and the narcotics. In this respect in the similar case of Nadir Khan V State (1998 SCMR 1899) it was helcl as under,

"We lunte gone tlrouglr tfu euidence on record nd .find that the petitiotters had the tharge of rchicle J'or n long journey stnrting .fronr Peslntonr and terminnting nt Karachi. They lnd the dritting licentes also. As being person incharge of the z,ehicle for such a long journey, they tnust be saddled with tlrc necessary knozoledge zuith regard to the aehicle and its contents. The probabilities or the presumptions are all dependents on the circumstances of each case arul in the present case the circuntstaflces fully estdblish their knouletlge and araareness of the contents and their explanation shouting the ignorance actuallq strengtlrens that conclrtsion rathcr than uteskening lf". (bolcl adried)

Ioq

(f)Under S.29 CNSA once the recovery has been proven as in this case the onus shifts to the accused to show his innocence in that at least he had no knowledge of the narcotics. The appellant has not been able tcr do so in this case. In the case of Mehboob-Ur-Rehman V State (2010 MLD 481) it was held as under in this respect at I'485 I'ara 14 "Under the proztisions of section 29 of the C,N,S. Act once tlte recopery of contrabands uas made from a pritute car ruhich ruas hy then in control of the hrc appelLants, the burden to explain the possession ulether actual or constructh,e ruas on tlt nppellnnts to discharge but neither tlrcy lmt,e led nny etidente in defence nor haae appeared in disproof of the prosecution et'idence under section 3a0Q), Cr.P.C. thus tle charge laid upon them has remained unrebutted" .

(g)That it would be extremely difficult to foist such a large amount of Charas being 80 KG's and the fact that it was all hidden in secret Y cavities in a car owned and driven by the accused points to his actual knowledge of the narcotics anti his guilt for the offense as chargecl.

(h)That the recovered narcotics were kept in safe custody from the time oI 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 narcotic was taken to the chemical laboratory for testing by PW 3 Muhammed Adil who was the IO. lt is true that the recovered narcotics were sent for chemical analysis with a clelay of 6 clays however it is well settled by now that the provisions govcrning such rules are directory and not mandatory and such chemical report was positive and complied with all relevant legal requirements antl protocols as is apparent from the report itself.

(l)No doubt it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defense case which for the reasons already mentioned above we disbelieve.

Lro

12.Thus, for the reasons mentioned above, we find that the prosecution has proved its case beyond a reasonable doubt against the appellant and the impugned judgment is upheld and the appeal is dismissecl.

) 13. The appeal is disposed on in the above terms

kMz p{cn.rf.rfuu

E

ol f

V