KHAN BADSHAH S/O ZER BADSHAH & ANOTHER (Appellant) VS THE STATE (Respondent)

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IN THE HONOURABLE HIGH COURT OF SINDH AT

KARACHI

zQl Cr. Appeat No. D >"" 12016 r":;.1:-TEEffr.

1.Khan Badshah Slo Zer Badshah 05 -.1\-zo r6

2.Shad Gut S/o Ustaad Gul Mustims, Adutts, R/o Karachi, ,|b/,/roth"tts't Presently Confined in Central Prison, 3r{s1 Karachi --------------APPELLANTS / AC SED

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The State -------------RESPONDENT

FIR No.10/2015 U/s 619-C, 14,15 of Narcotics Act. 1997.

P.S. ANF Clifton Karachi

APP EAL U N0ER sEcTlffi EiBlldlNAL

PROCEDURE CODE

Being aggrieved and dissatisfied with the impugned Judgment dated 06-10-2016, passed by the tearned llND Speciat Court CNS Karachi, whereby the learned trial court convicted the appellants/accused above U/s 265-H(21 in Special Case No.94l201 5, for the offence punishabte under section 6-9-C cNS Act, Read with section 14/15 of the CNS Act'1997, and sentenced him to suffer imprisonment for life and to pay fine of Rs.300,000/- each. ln case of defautt, they witt be suffer further simpte imprisonment for one year 6 months and benefit of Section 382-8 Cr.P.C. is atso avoided to accused persons. Therefore the appeLtant5 / accused abovenamed prefers this appeat with the prayer that this Hon'ble Court may be pleased to set-aside the order/ judgment dated 06-'10- 20'16, passed by the llND Speciat Judge CNS, Karachi, in Special Case No.94l201 5, and catt R&Ps of the case and release/ acquit or baiI out them from the case on the foltowing facts and grounds:-

- r rti Certified Copy of the Judgment dated 06-10-2016 is enclosed herewith and marked as annexure 'A'.

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IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.388 of 2016.

Present:

Ml lustice Mohammad Karim Khan Agha Mr. Muham m ad S q leryLll1S s t..

Appellants 1. Khan Baclash S/o. Zer Baclshah

2.Shad Cul S/ o. Ustacl Cul through M/ s.

Muhammad Akbar Khan and Noreen Naz, Advocates,

For State: Mr. Habib Ahmed, Special Prosecutor ANF

Date of hearing: 24.0?.2020.

Date of announcement: 09.03.2020,

UDGMENT

Mohammad Karim Khan Agha, J.- Appellants Khan Batlshal-r sou of Zar Badshah and Shad Gul son of Ustad Gul have preferred this Criminal Appcal against the impugned judgment dated 06.10.2016 passed by the learned Special I Courtll (C.N.S.) Karachi in Special Case No.94 of 2015, F.l.R. No.10 of 20i5 U/s 6/9-C,r/w section 14115 of the C.N.S. Act, "1997, registered at P.S. ANF Cllifton, Karachi whereby the appellants have been convicted for offence section 9-C CNS Act, 1997 ancl sentenced to Life Imprisonment and fine of Rs.300,000/- (Rupees three hundred thousand only) each. In case of default in payment of fine thev were ordered to suffer further Simple lmprisonment for one vear antl six months each. Benefit of section 382-8 Cr.P.C. has also been extendetl to the appellants.

2.The brief facts of the case are that an FIR was lodged against the accuseti Persons by the complainant Inspector Mohammad Muzammil on 06.02.2015 at about 1830 hours and he alleged therein that he received information through tl.rc high ups as the spy inJormed that narcotic dealer namely Naeem Khan, r/o. Bunair had handed over the narcotic contraband stuff to his agents name.ly Khan Badshah and Shad Gul for its deliverv to his customer namell, Aziz, r f it.

Gulistan-e-Johar and Tariq Zaman, r f o. Gulshan-e-lqbal, Karachi ancl it was further informed that Khan Badshah and Shad Gul would pass the Nation.rl Highway near Gul Ahmed Mills in between 1500 to 1600 hours along with hugt contraband narcotic stuff in vehicle Toy.ota Probox bearing registration No.1213, therefore, a raiding party was constituted comprising Sl Attaullah Jarloon, SI

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Mashooq Abbasi, SI Nawab Alam, HC Shamraiz Khan, PC Tanveer Yourrus, [)C Meraj Soloangi, PC Zafar, PC Mohammad Ahmed and other ten more ANF stafi left the PS along with the spy informer in two official vehicles along with.rrrns and ammunitions according to the Entry No.9 at 1400 hours and reachecl at Manzil Petrol Pump, National Highway, near Gul Ahmecl Mills al about 11{5 hours and started surveillance and at about 1530 hours a 'foyota Probox car bearing registration No.KPK-1213 was seen and the said car was stoppetl with a Breat strategy and apprehended the dnver and the person who was sitting on the front seat and the passerby were asked to act as the mashir of arrest and recover\, but they excused due to fear of the narcotic pecldlers, therefore, PC Meraj Solangi and PC Mohammad Ahmed were nominated as n,itnesses and asked the narnes of the accused persons. The driver disclosed his name as Khan Baclshah sor.r oi Zar Badshah, resident of Abdullah Goth, Shah Latif Torvn, Malir, Karachi antl the other person disclosed his name as Shacl Gul son of Ustad Gul, resident of Abdullah Goth near MM Cosmetic, Shah Latif Town, Nlalir, Karachi. A nr,lon sack was lying between the legs of Shad Gul in the front seat. Jhe accuserl Persons disclosed that it contained heroin and upon opening the sack seventeLT packets wrapped in yellow solution tape were recovered and upon cutting each packet, heroin powder was recovered in a hansparent polvthene bag and all the seventeen packets were weighed through tligital scale at the spot and everv packet was found weighing 1500 grams except one packet which w,as wcigheti one Kg with the total weight of the narcotic contraband stuff amountir-rpi to 25 Kgs. He had collected seventeen samples consisting 10 grams from each packet for the purpose of chemical analysis and sealed it after putting it into tht transparent separate polythene bags and cover of brown envelopes and put the mark 1 to 17 on all the packets of the case property for the identification ancl also put the identification mark on the packets of samples. He had sealeri all the heroin in the same sack and upon personal search of accusecl Khan Badshah one original CNIC, one original driving license, some visiting cards, some slips, Rs.500/- Pak Rupees, one cell phone Samsung with sims were recoveretl frorrr right side pocket of his shirt while from search of Shatl Cul from right sitlc pocket of his shirt one original CNIC, one driving license original cash Rs..t00/-, a one cell phone Nokia with sim card and some visiting cards were recovererl. Upon search of the vehicle from the Dash Board 04 copies relating to the r,ehicle were tecovered. The complainant prepared the memo of arrest and recoverv at the spot and the contents of it was read over to the witnesses who had put their respective signatures, the witnesses also put their respective signatures rrn tht. e

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case properties as well. Thereafter case properties and the accusecl persons lverc taken to PS ANF CliJton, Karachi where FIR was lodged against the accusetl persons and investigation was started by Inspector Muhammad Muzamrnil Ahmed.

3.After completing the investigation charge was framecl against tht: appellants to which the accused persons pleaded not guilty and claimeel to be tried.

4.The prosecution to prove the charge examined 03 PW's who exhibitecl various documents and other items in support of the prosecution case where after the prosecution closed its side. The statements under section 342 Cr.P.C. of the accused were recorded in which they denied the allegations leveled against them by the prosecution witnesses and claimed false implication and mar'le the following claims under oath. Accused Shad Gul called one DW in support ol his delense case.

5.Learned Special Court-ll (C.N.S.) Karachi after hearing thc k'arnori counsel for the parties and assessment of evidence available on record, vide I judgment tlated 06.10.2016, convicted and sentenced the appellants as statetl above, hence this appeal has been filed by the appellants against their conviction.

6.The facts of the case as well as evidence producecl before the trial court find an elaborate mention in the impugned judgment, therefore, the same are nor reproduced here so as to avoid duplication and unnecessary repetitiolt.

7.Learned counsel for the appellants has contended that the accuserl are completely innocent and have been falsely implicated in this case, that there u,as a delay in sending the chemical report, the narcotic recovered was of tr sliglrtlr,' different color from that in the chemical report ancl most importantlt, the chemical examiner did not have the required qualifications to con('luct the chemical analysis and as such the chemical report could not be relied upon anti a as such the appellants should both be acquitted of the charge. In support of l.ris contentions he placed reliance on the case of Khair-ul-Bashar v. The State (2019 SCMR 930), Israr v. The State (2011 P. Cr.LJ 1203), Awal Raef v. The State (2()1{ P. Cr.Lj 1075), Collector of Customs (Preventive), Government of Pakistan, Custom House, Karachi v. Safiad Muhammad laffer and 2 others (2009 P. Cr.l-J

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232), Aman-ul-Haq v. The State (2015 MLD 518), Abdul Qadir v. The State (2015 P. Cr.LJ 235), Muhammad Imran v. The State (2011 SCNIR 195.1), Ameer Zeb v. The State (PLD 2012 Supreme Court 380), Taimoor Khan and another v. The State and another (2016 SCMR 621) and lkramullah and others v. The State (201s scMR 1002).

t 8. On the other hand learned Special Prosecutor ANF has fullv supportecl tlre impugned iudgment and has contendetl that the narcotics were recoverecl in tlre possession of the accused on the spot and had not been foisted ancl that the chemical examiner was tluly qualified to carrv out the chemical tcst which u,rrs Positive and that there was no undue delay in sending the narcotic for chcrrical testing and as such the appeal shoulcl be dismissecl. [n support of his coutentitrns he placed reliance on Muhammad Kamran v. The State (2019 SCMR i314) and State through Regional Director ANF Peshawar v. Sohail Khan (2019 SCM{I

9.We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out bv the learnecl counsel for the appellants, the impugned iudgment with their able assistanct, anri havt, I considered the relevant law including that citecl at the bar.

10.After our reassessment of the evidence we are of the vie*, that thc prosecution has proved its case beyond a reasonable doubt against the appellants for the following reasons:-

(a)That the arrest and recoverv was made on the spot and the appellant was caught red hancled u,ith the narcotics bt, the police whose evidence fully corroborates each other in all material respects as well as the prosecution case. tt is well settled bv now that the eviclence of a police witness is as reliable as any other witness providetl that no enmitl' exists between them and the accusecl ancl in this case no ennritl has been suggestecl against any oi the police PW's and as I such the police had no reason to falsely implicate the appellant in a false case. Thus we believe the police evidenct which is corroborative in all material respects. Reliance in this respect is placed on the unreported recent supreme court case of Mustaq Ahmed V The State clated 09-01-2020 t.

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in Criminal Petition No.370 of 2019 where it was held in material part as under at para 3;

" Prosecution cnse is hinged upon tlrc statements of Anmir Masood, TSI (PW-Z) and Abid Hussnin, 336-C (PW-il:

being oficials of the Republic, they do not seent to huz,e nn nxe to grind ngninst the petitioner, intercepted nt n puhlit' place duing routine search. Contrabnntl, consitlernhle itt quantity, cannot be possibly t'oisted to fabricate n fake clurge, that too, roitltout any apparent reason; uhile furnishing eoid.ence, both the rcitnesses remainerl throughout consistent and confdence inspiing nnd ns arch can be relied upon ruithout a clemur."

(b)That the spy information about the type of car and its registration number and its route fully corroborates the prosecution case since this is the car which tlre appellants were arrested in proceeding along the informed route and the narcotics discovered which was recovered along with its k"y.

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(c)The FIR was also registered with promptitude gii,ing ncr time for concoction and the 5.161 statements were recorcled promptly which were not significantly improved upon bv any PW at the time of giving evidence.

(.1) That there are no maior contradictions in the evidence of the PW's and it is well settleci bv now that minor contradictions which do not effect the materialit), of the evidence can be ignored. ln this respect reliance is placetl on Zakir Khan V State (1995 SCMR 1793).

(e)Most significantly the narcotics w,ere recovered from the front seat of the car where one co-accuserl was sitting lvhilst a the other co-accused was driving the vehicle anrl as such there is no question that the accuseri had actual knowledge of the narcotics which were being transportetl. The car w,as recovered along with its kev ancl the narcotics. Ir.r this

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respect in the similar case of Nadir Khan V State (1998

SCMR 1899) it was held as under,

"We lnue gone through tfu et'idence on record and find that tlu pititioners ltid the charge o.f t.'ehicle t'or t lon8. iottrnert stnrting front Peshntmr nnd ternunting nt 'Karaclii. They"hnd the drit'itrg lrcenses nlso As hei.ng oerson mthnrie of flu' oehicle for such n lottg iottrney' lltv, '*,,st be ,n,ldird ioith thc netissnnl knollcdge u'ilh rrgnrl lo the uehicle flnd its contents. The prohnbilitics or tlu'- presrtntptions nre nll tlepcndents on tlt i lrr li"'Is/nll( r'5 o/ 'each crtise nnd in tlu present case the circuntstances t'ulh1 estabtish tlrcir knotoledge tnd otpareness of the conten.t.s

and their explanation shotling the igtrcnnrce nc.ttnlly strengtlens tial conchrsion rntlwr thott u'enkenitrS it" '

(f)That it would be extremelv c'lifficult to foist such a ltrrgr' in amount of heroin being in total 25 KC's as mentioned Mustaq Ahmed's case (SuPra).

(g)That one of the main arguments raised bv the appellants was that the chemical examiner was not qualified to carrY and as out the chemical examination of the recovered heroin such the chemical rePort cannot be safelv relied upon ln this the regard he relied on a Constitutional Petition wherel'rv chemical examiner (PW 3 Dr'Fazle EIIahi Metlon's) Notification as Director Laboratories/Chemical Examiner was struck down by this court However this petition concerned a service dispute between two Parties and had

nothing to do with the qualifications and expertise of the chemical examiner to carry out the chemical examination' Through his evidence the chemical examiner PW 3 Dr'Fazle Ellahi Memon has explained that he is more than qualified tcr

carrv out the chemical test and that all necessarv protocols were complied with and that the chemical report rt'as positive.

(h)That the recovered narcotics were kept in safe custodv from the time of their recoverv to the time 'n'hen they w'ere taken for chemical analysis anll no suggestion of tampering with the same has even been made. lt is true that there was a 2 to 3 rlays delay in sending the recovered narcotics for z

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chemical analysis however this has been explained in the evidence as these were weekend (Saturday and Sunelar') days, Even otherwise the rules when the chemical must be sent are directory and not mandatory.

(i)The slight colour differentiation in the narcotic is oi ntr t relevance at this stage as this was not raisetl before the trial court. ln this respect reliance is placecl on Muhammed Kamran's case (Supra)

(j)That although no independent mashir was associate'd with the arrest and recovery of the appellants it has come in evidence that no private Person was prepared to become an independent mashir at the time of arrest and recoverv despite being asked. Even otherwise S.103 Cr.P.( is excluded for offenses falling untler the Control o{ Narcotic Substances Acl 1997 bv virtue of S.25 of that Act. In this respect reliance is placed on the casc' of Muhammad Hanif v The State (2003 SCMR 1237)

(k)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 we disbelieve. This is because the appellants simply raised the defense of false implication however they admitted that the police/ ANF hacl no enmity with them. One DW who was the son of one t,i the accused stated that his father had been picked up by law enforcement agencies however his complaint to the police has no evidence that it was received and thus in our vierv this is a cooked up defense by the accused in order to save their skins. The entire case of the prosecution as seen from its evidence tends to ring true from the time of the receipt of the spy information to the time when the accused were stopped by the police in the car with the registration numLtr provided by the spy in-former to the recoverv of the narcotics from the car up to receipt of the positive chemical report.

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11.Thus, for the reasons mentioned above, we find that the prosecution lras proved its case beyond a reasonable doubt against the aPpellants anll tht' impugned iudgment is upheld and the appeal is dismissed'

12.The appeal is disposed of in the above terms

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