SHAHID KHAN S/O ALAM ZAIB (Appellant) VS THE STATE (Respondent)

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r or rt prilcip'lc Certilictl tlltlt the judgnlent / Orrlcr .is .bascd upon inrprcssion i*..i,i.f, it of fiist -cnuuciatusdistiagrtishes / i' ol law t /dccides -n,u.rsesa question oi f ^tr- us decision' ,,*,:]iur.i I /txplnins a prr:vic

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'strikc out whichevcl is not applicable

NOTE:-(i) This slip is only to tre r'scd when some actjon is to bc taketl' (ii) If thc slip is used, the llca<lcr must flttaclt it to the top of the Ilrst pa8e of the iudgment.

(iiir Rerdcr rnust 8sk the Judgc writing the Judgtnent whcthcr the Judgnrerit is approved ior reportlng' (iv.r l'hose clircctions wlrich arc not to be used should bc deletcd' SGP., Kar.--L (iir) 1459.-5,000-'6'93--T S'S'

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IN THE HONORABLE IIIGTI

COURT OF SINDH AT KARAC

CR .APP EAL No. III

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lo / *1 SIIAHID KTIAN S/o A LAM

PRESENTLY CONF'I NED

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C_Orrlpt-,+IIrqanr/ F.I.R No.08 /2014 RE< pe,voenrl '.a u/s6&9(C)C.N.S.A

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L-I BAI- KA RA CIII

APP EAL FR OM SEN TEN

OF CO URT OF SES SIO CE

NU /s4 r0 CR. P.C Being aggrieved and dis_satisfied with the judgment dated: 26-09-2A17 passed by the learned Session Judge (WEST) at

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Karaclri. irr Session Case No.4l 1/21rc F.I.R No.0g

/2A14 U/S

6 & e(c) C.N.S.A, PS ANF (l LSIIA N-I'l-l li AI, KA RA I (Certified copy Of judgment Dated:26-A9-2017 is filed herewith and marked as Arurexrrrg 0.A,,) whereby the leamed trail court con vIc ta lan tl (A ccu sed 1l' asi uven ile a t the tinr eof comm rsst on of al edo ffenc e akroven amed u nder secti t n 265- H 1 Cr.P .ctosu ffcr R orou sIm rtson mcn t for I-ifc and fine of Rs.l 00. 000 ind efaul tof { \, men tof fine. thC ACC used shall SU ffer ^sinr pl eim l) riso n len tof Six nr on t hs rn ore. The appellant prefcr this appeal as well as suspension of sentence

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IN THE HIGH COURT OF SINDH AT KARACHI

Criminal JaiI Appeal No.476 of 2077 Present:

Mn lustice Mohammad Ka rinr Khnn Aglta Mr. lustice Mulmmmad Saleenr /essrr r.

A;rpellant: Shahid Khan s/o. Alam Zaib through Mr ShamsulHadi, Advocate.

The State Through Mrs. Abida Parveen Channar, Special Prosecutor ANF.

Date of hearing: 1.6,03.2020.

Date of announcement: 27.03.2020.

IUDGMENT

Mohammad Karim Khan Agha, l.- Appellant Shahid Khan son of Alam Zab has preferred this Criminal Appeal against the impugnerl judgment dated 26.09.2077 passed by the learned Sessions Judgr. (West) Karachi in Session Case No.411 of 201,6, F.l.R. No.08 ot 2014 U / s.6 & 9(c), ,l.

of the C.N.S. Act,1.997, registered at P.S. ANF Gulshan-c-lc1ba l, Karachi whereby the appellant has been convicted for an offence under sectron 9-C CNS Act, 1.997 and sentenced under Section 265-H(2) Cr.p.C. to suffer Rigorous Imprisonment for Life and pa1, f ine of Rs.1,00,000/-. In case of default in payment of fine he was ordered to suffer further Simple Imprisonment for six months more. Benefit of section 382-8 Cr.l,,C. has also been extended to the appellant.

2.The brief facts of the case as per FIR lodged by one Inspector Shiraz of ANF (Gulshan-eJqbal), Karachi on 28th November,2014 are that on the eventful day, on spy tip, he along with subordinates, interceptecl the accused while he was going to supply consignment of Charas in a Rickshaw bearing registration No.D-09458 at Ittehad Town near llyas r( Coach Stand, Karachi and recovered 20 packets of Charas weighing one kilogram each, total weight 20 kilograms. Consequent upon instant case was registered inter alia on above facts.

3.After usual investigation report was submitted against the accused before the trial court for trial, but after examination of accused a Mc.dical Board on 24.2.2076 determined his age between 16 to 19 years, therefore

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vide order dated 74.3.2976learned Special .fudge returned the charge sheet to submit the same before the court having juriscliction. Thereaftcr a formal charge was framed against the appellant by the concerned court to which he plead not guilty ancl claimecl to be tried,

4.The prosecution in order to prove its case examined twct prosecution witnesses who exhibited numerous documents and other items and thereafter closed its side. The statement unrler se.ction 3,12 Cr.P.C. of the accused was recorded in which he denierl the allegations against him and claimed false implication. He examined himself on Oath but did not call any DW's in support of his defense.

5.Learned Sessions Judge (West) Karachi after hearing the learnerl counsel for the parties and assessment of evidence available on rccorr'l, vide judgment dated 26.09.20-17, convicted and sentenced the appellant as stated above., hence this appeal has been filed.

6.The facts of the case as well as evidence produced before the trial /i.

court find an elaborate mention in the impugned iudgment, therefore, the same are not reproduced here so as to avoid unnecessary repetition.

7.Learned counsel for the appellant has contended that the appellant was falsely implicated in this case at the behest of the Pakistan Rangers, and that the narcotics were foisted on him bv the ANF police, that he was only'17 years of age, that the Rickshaw in which he was stopped did not beiong to him, the complainant was also the IO, that there w,ere contradictions in the evidence of the PW's, that there was no evidence of safe custody of the narcotic and as such the chemical report coultl not be safely relied upon and that there had been a violation of S.103 Cr.PC anci that for any of the above reasons the appellant should be acquitterl by extending to him the benefit of the doubt. In support of his contentiorrs he has placed reliance on The State through Regional Director ANF V Imam Bakhsh and others (2018 SCMR 2039), Muhammad Boota V The State (2020 SCMR 196), Khair-ul-Bashar V The State (2019 SCMR 930), Qaiser Javed Khan V The State (PLD 2020 SC 57), Ali Hassan V The State (l'LD 2001 Karachi 369) and Agha Qais V The State (PL] 2010 Cr.C (Lahore) 511

(DB).

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8.On the other hand learned Special Prosecutor ANF has fulll, supported the impugned judgment and has contended that the appellant was arrested on the spot where the recovery was macle from him whilst he was driving a Rickshaw, that there was no delay in sending the chernical report for analysis which report lvas positive and thus the prosecution had proved its case beyond a reasonable doubt and as such the, appeal should be dismissed. In support of her contentions she placecl reliance orr State through Regional Director ANF Peshawar V Sohail Khan (2019 SCMR 1288), Muhammad Kamran V The State (2019 SCMR 131.1) arrd Hussain Shah and others V The State (PLD 2020 SC 132).

9.We have heard the arguments of the learned counsel for the parties, gone tfuough the entire evidence which has been reacl out by the learnecl counsel for the appellant, the impugnecl juclgment with their able assistance and have considered the relevant law including that cited at the bar.

10.After our reassessment of the evidence wc. are of the view that thc prosecution has proved its case beyond a reasonable doubt against the'

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appellant for the following reasons:-

(a)That the fact that the appellant was 17 years of age in our view is not relevant as the impugned judgment reveals that the appellant was triec'l before tl.re relevant trial court keeping in vit",,n, his agc.

(b)The FIR was also registered with promptitucle giving no time for cor-rcoction ancl the S.161 statements were recorded promptly which were not significantly improved upon b1, any PW at the time of giving evidence.

(c)The FIR is not a substantive piece of evidence so we do not consider it is fatal to the prosecution case that the person who transcribetl the FIR was not examined especially as it was exhibitecl in eviclence. In this respect reliance is placed on Muhammed ( Akram V State (2006 SCMR 1567)

(d)It is settled by now that there is no restriction on the complainant being the IO provided that no animosity or enmity is alleged against him by the accused and none has been alleged in this case. In this respect reliance is placed on Zafar V State (2008 scMR 1254)

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(e)That the arrest and recovery was madc on the spot and the appellant was caught red hantled 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 now that the evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused and in this case no enmitl' has been suggested against any of the polir:e PW's and as such the police had no reason to falsely 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 placecl on the unreported recent supreme court case of Mushtaq Ahmed V The State dated 09-01-2020 in Criminal Petition No.370 of 2019 u,here it was helcl in mate rial part as under at para 3;

" Prosecution case is hinged upon tfu stnlenrc ts of Aamir Masood, TSI (PW-2) nnd Abid Hussain, 336-C (PW-3); being offcinls o.[ tlrc Republic, they do not seem to lnte nn axe to gind against tlrc petitioner, intercepted at n public place duing routine search. Contraband, considerabLe in quantih1, cnnnot be possibly foisted to fnbricate a fake chnrge, tltot too, tuithout any apparent renson; ulile furnishing ettidence, both tle ruitnesses retrained throughout consistent and confi dence inspiring and ns such can be relied upon uitltout a demttr."

(f; That the spy information about the rickshar,,, including its registration number ancl the route it would take fully corroborates the prosecution case. since this is the rickshaw in which the appellant w,as driving, stopped and arrested whilst proceeding along the inlormed route ancl the narcotics discovered which was recoverecl along with the rickshaw.

(g)That there are no major contraclictions in the evidence of the PW's anll it is well settlecl by,now that minor contradictions which do not effect the materiality of the eviclence can be ignored. In this respect reliance is placed on Zakir Khan V State (199s SCMR 1793).

(h)The slight clilference in description/ weight of tl'rr. narcotic in the evidence of the PW's is not of anv relevance at this stage as this was not raised before the trial court. In this respect reliance is placed on Muhammed Kamran's case (Supra)

(i)Most significantly the narcotics wt re recoverecl lrom a concealed place in the rickshaw utlrich tlrc appellaflt reuealed to the police and he was the onlq

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Person ifl the ickshaw and as such there is no doubt that the accused had actual knouledge the of narcotics which were being transported. The rickshaw was recovered along with the narcotics and despite the police using their best efforts to track down the owner they were unable to succeed. In this respect in the similar case of Nadir Khan V State (1998 SCMIT 1899) it was held as under,

"We haoe gone through the e't'idence on record and fnd that tlrc petitioners had the cltnrge of oehicle for a long jountey stnrting .fronr Peshauar and terminating at Knradu. Tlrcy had the driuing licenses also. As being person inchnrge of the uelicle for such n long iourneq, they must be saddled with the n.ecessary knoruledge uith regard to the t ehicle nnd its contents. Tle probabilities or tle pre*mptions are all dependents on the ciraunstattces of eaclr case nnd in the present case tlrc circunrstttnces fully establish their knowledge nnd au,nreness of the contents nnd their explanntion slntoing tlrc ignornnce actualLy strengtlvns that conclusion rather than weakening it" .

In this regard reliance is also placed on Hussain Shah's case (Supra) rvhich is similar to the' facts and circumstances of this case,

Furthermore, Under S.29 CNSA orrce the recovery has been proven as in this case the onus shifts to the accused to shou,, his innocence in that at least he had no knowleclge of the narcotics. The appellant has not been able to do so in this case. In tlrr-. case. of Mehboob-Ur-Rehman V State (2010 MLD 481) it was he[1 as under in this respect at P485 Para 14 "Under the prooisions of section 29 of the C.N.S. AcI once the recoaery of contrabands wns mnde fron t prittate car wlich wns by tlLen in control oJ tlrc tuo appellants, the burden to explnin the possession ruhether actual or constructire uas on tlp nppelli,tts to discharge but neither they lnue led any et,idence in defence nor haoe appeared in disproof ol tlrc ltroset u tiott eaidence under section 340(2), Cr.P.C. tlrus tlr clutrge laid upon thern has rennined unrebutted" .

{ (j) That it would be extremely difficult to foist such a large amount of charas being in total 20 KC's as mentioned in Mustaq Ahmed's case (Supra) and The State V Abdali Shah (2009 SCMR 291).

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

(L)That the recovered narcotics were kept in safe custody from the time of their recovery to the time

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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 anti rc,achec.l thc chemical examiner in a sealed condition as per the chemical report. In this respect reliance is placed on the recent Supreme Court case of Zahid and Riaz AIi V State dated 03-03-2020 (unreported) in Jail Appeal No.172 of 2018. Although this case concerned rape since it concerned the safe custody of certain swabs being sent to the chemical examiner rl,e 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; "Tht clrcmical examiner's report produced by the ltuhl doctor states tltnt tle seals of specinrcns sent for chemical examinntion uere receiued intact nnd tt u,ns tle chemical etaminer ru\rc hLul broken oytett tlu, seds, therefore, the contention of tlte petitioners' lenrned counsel regarrling the safe transmission of tlu specimens is tiiscounted both by this.foct as ruell ns hy thc fnct thnt no qtrcstion was prt regarding tnmpering of the said seals."

(m)All relevant police entries were dul.y exhibitecl.

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(n)That although no inclependent mashir was associated with the arrest and recor,,ery of the appellant it has come in evidence that no private person was prepared to become an independent mashir at the time of arrest and recovery clespite being asketl. Even otherwise 5.103 Cr.P,C is oxcludetl for offenses falling under the Control of Narcotic Substances Act 1997 by virtue of S.25 of rhat Act. In this respect reliance is placed on the case of Muhammad Hanif V The State (2003 SCMR 1237).

(o)No doubt it is for the prosecution to prove its case against the accused bel,oncl a reasonable doubt but we have also considered the defensL' case which w,e disbelieve. This is because the appellant sirnply raisell the defense of false implication at the behest of thc Pakistan Rangers who he allegecl had k.ept him for 5 days in illegal custodv before handing him over to the { police to fix him in a false case. The appellant however did not call an1, witness in support of his defense neither did he produce any application to anv court or other concerned official that the Rangcrs hatl taken him into illegal custocly and nor did he mention this to the remand judge. In his 5.342 Cr.PC stateme.nt he states that "he only has an old mother and two sisters and they were too not available and they are in village situated in Bunair KPK". However during his evidence under Oath the appellant states th.rt hr-.

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"had gone to meet my sister in Ittehad Town Karachi". These statements are contradictory ancl in our view lead to the conclusion that the appellant's defense cannot be believed and that it is a cooked up defense in order to save his skir-r.

11.Thus, for the reasons mentioned above, w,e fincl that tl-re. prosecution has proved its case beyond a reasonable Lloubt against the appellant and the impugned judgment is upheld and the appeal is dismissed.

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

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