ZAHID KHAN S/O JUMMA GULL & 03 ORS (Appellant) VS THE STATE (Respondent)

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(a)Judgment aPProvcd for Ycs reporting.

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*Strikc out whichcvct is not applicaLrle

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(iiit Rerder mnst ask the J udge writinS the Judgrnent whether thc Judgnrerit is approvr:d iior reporting'

(ivl Thosc dircctions wtrich aic not to be used should bc dcletcd' SCP., Kar.--L (iii) 1459-5,000.- 6'93--T'5'5'

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HIGH COURT OF SINDH AT I(ARACI.]I

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:,rlri(i Khan s/o Jurnnla Gull ,:rvaid (han s/o Shonib al,cv..(( oXrnro,r^a,o' ,\lanr Z.ib Khan s/o Shoaib I --, cit- a.r<_r, t2 l?

Wirris (han s/o Noor Rehman 1X,.,

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Subjeit:crinrinal Appeal Us 48 of CNSA 1997

.l .rnd olss,rl sl cd w th lhe ludlle..(,nt passcd hV learned tflJlcourt CNS ll Karachi 0{,20ia lr.rrlr ali ihi l.:,.rrrreC irral lirdfle was p eased to convrct dnd 5entenaed lrl{,rn l' sorrrrr(,llt.rr(l to p.ly lrnc lts 5{l'J,000.nd rn dcfalt to pay llre firle all the f I it.t i : I \i tit r ,-.,rhi., I r,i,C Yi,ar\ rn I)fi!r)llfl,r,nt )ppe.l ! ,r.frr red ,rllJrn5t mpuBned judgrneni on followin[ facts and Srounds ts (rl ll,L- ,-.r5. ,.rr r)rr llli nrc t5nl cornplarn.nt N4ohar)rnrad AIral of PS ANF Clifton, odrl(rr,'tr or,04 0j 201J, a ilLroLrt 0145 hours, and;rlleged theriD th.rt on 01.03.2013, r)rp\i,,I :rt lr. 'i,rl ved !l)y inlorrn.tio through high ups that rntcrnatio.ral narcotic :r\ n,)rr r,y 1jJ.rvir(r (rr,rrl, iri Al.rn lJrb; (ilr) Zahrd Khan.rnd iiv) lVJris Khan were r . Lr:: ,,' I | 1, r.:tr, ilr,,r nlir,i (;l nJ r coi ic coot rab! n(l at t{af iq ue Ma nzil, r)ea r Noor Masjid, rr -., (ar.rch rr.jv/Lr.rldsll]Lrt1g{rnarcotrcbyconcealinginorronanCiIiInn]ediate

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IN THE HIGH C OURT OF SINDH AT I(ARACHI

Criminal Jail Appeal No'278 of 2016

Present:

Mr. Iustice Nlohatnmad Karim Khan Agha Mr. M ummail Saleen lessar.

I Appcllants by 1. Zahid Khan S/o. Jumma Gull 2. Javaicl Khan S/ o. Shoaib.

3.Waris Khan S/o. Noor Rehman thlough Mr. Muhammad Islam Leghari, Aclvocate.

Fol State 1u'1r. ;13!ib Alrmed, Spe'cial l'rosecutor ANF Date of hearing: 18.02.2020 Date oI anuouncement: 76.02.7020.

DGMENT

Mohammad Karim Khan Agha, J.- Appellants Zahid Khan S/o lumma Gul

Khan, Javetl Khan S/o. Shoaib Khan and Waris Khan S/o Noor Rehman have clated preferrecl this Criminal Jail Appeal against the impugned iudgment passed by the learned Specral Court-ll (C'NS) Karachi in Special

C N S Act' 1997 ' P S' ANF { Case No.192 of 2012, F.l.R. No 14 o( 2013 U /s 9-C' for offence under Clifton, Karachi whereby the appellants have been convicted 6 punishable under section 9-C CNS Act' 1997 and sentenced to Life section thousand only) Imprisonment anrl frne of Rs.500,000/- (Rupees five hundred to suffer further each. In case of default in payment of fine they were ordered 382-8 Cr'P C' has also Rigorous Imprisonment for tfuee years Benefit of section been extended to the aPPellants,

Mohammacl

2.The brief iacts of the case as per FIR are that comPlainant at about 0145 hours Afzal of PS ANF Clifton, Karachi lociged FIR on 04 03'2013 PS and received spy and alleged therein that on 03.03.2013 he was present at namely (i) information thrcugh high ups that international narcotic smugglers Khan anc{ (iv) Waris Khan were present Javed Khan, (ii) Alam Zaib, (iil) Zahid Manzil' near Noor along with huge quantity of narcotic contraband at Rafique by concealing it iu Masjid, Jubilee Cinema, Karachi and woultl smuggle narcotic possible' Therefore' ou onions and if immediate action be taken recovery must be

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direction of high uPs a raiding Party was constituted headed by him along with ASI Muhammad Ali, ASI Umair Fahim, HC Nasir Khan, PC Mazharuddin' PC Zafar lqbal, PC Zeeshan, PC Rizwan and other ANF staff who duly armed left IIS in two official vehicles along with spy informer vide Roznamcha entry No 3 at 1500 hours on 03.03,2013 and on Pointation oI spy inlormer at about 1600 hours leached at FIat Nos.1 and 2, ground floor, Rafique Manzil, Shami Road, ne;rr I Noor Masjitl, Jubilee Cinema, Karachi u'here people were available on the spot and they askecl to act as witnesses but they refused due to fear of the narcotic srnugglers, therefore, from the raicling party ASI Umair Fahim ancl HC Nasir Khan were nominated as witnesses and knocked the door of Flat No 1 ancl 2 standing on the ground floor of the saicl Rafique Manzil One person opened the cloor ancl on seeiug the ANF Party tried to close the door who was apprehentlecl with the help of ANF staff who entered the flat where they found three person in a room who were concealing heroin capsules with the help of tools in onions' who were also apprehended ancl on inquiry they clisclosed their narnes as (i) Zahicl Kl.ran son of urna Gul, (ii) Javeel Khan son of Shoaib Khan, (iii) Alam Zaib .f

son of Shoaib Khan and (iv) Waris Khan son of Noor Rehman On inquiry all the Iour saitl persons statecl that in two katas heroin capsules and in the stock of onions they stated in which heroin capsules wete concealed and further statecl that 50 capsules of heroin were lying in a plastic theli Both the said katas were { openeci and founcl in each kata 850/850 heroin capsules shape wrapped with

white kansparent taPe, total 1700 heroin capsules and 50 heroin capsules recoverecl Irorr plastic theli while the stock of onions cut with the help of cuttcr

ancl recovered 84 capsules making a total of 11134 heroin capsules which were securetl ancl cut with the hetp of a cutter from which recoverecl heroin powder which were weighed on the sPot with the help of electronic weight scale ar-tcl the Kgs lreroir.r powder recoverecl frorn both the katas were found 23'1'50 /21'1'50 (gross), total 46.300 Kgs (gross) from the capsules recoverec{ from plastic thelli Kgs and onions capsules total 134 heroin capsules upon weighment found 3'700 (gross). Tl-re heroin 23.150/23.150 frorn two katas while the capsules from the plastic thelli ancl onious weighing 3 700 Kgs lreroin (gross) were scaled it.t otre kata for the purposes of ser.rding the three katas for chemical analysis On personal search from accused (i) Zahid Kl-ran recovered cash amount of Rs 800/- florn search accusetl (ii) Javecl Khan recoverecl 'Q' Cell Phone, original CNIC ancl cash arnount of Rs.1000/- Irom accusecl (iii) Alam Zaib recovered original

CNIC'

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clriving license, cash amount of Rs.1000/- (iv) while from accused Waris Khan recovered one Cell Phone Nokia-1616 and orrginal CNIC. They also securecl about 1000 Kgs. fresh onions from the floor of the said flat and secured four cutters and four packets of glue were sealed in white cloth bags The recoveretl l'reroin powder. tools, fresh onions, articles of personal search and concealec{ onions were taken into custody and alter observing required formalities at the I spot present FIR was lodged at PS ANF Clifton, Karachi against the accusecl PeISOnS

3.After conclucting usual investigation a challon was submittccl against the' accused before the concerned trial court ancl thereafter a charge was frametl against the accused shown in custody whereas one person namely Noman was shown as an abscorrder. All the accused plead not SuiltY and claimed trial'

4.The prosecution to Prove the charge examined 04 PW's who exhibiter'i various documents and other items in support of the prosecution case where after the prosecution closed its side. Tlre statements under section 342 Cr'l'C of the accused were recorded in which they cleniecl the alleSations leveled against them anrl claimed false implication. All tlre accused persons cxarniuecl themselves uncler oath ancl again claimed false implication They caller'l 2 DW's in support oI their clefense of false implication.

5.Learnerl Special Court-ll (C.N.S.) Karachi after hearing the learnecl counsel for the parties and assessment of evidence available on recorcl, vitle juclgment dated 21.06.2016, convicted and sentenced the apPellants as statccl above, hence tl-rese appeals has been filed against their convictions'

6.The facts of the case as well as evidence produced before the trial court finrl an elabolate mention in tl're impugneel lucigment, therefore, the same are not reproducecl here so as to avoitl duplication at-tc1 unnecessarY repetition'

7.Learned counsel for the appellants has contended that the appellants are innocent and have been falsely implicated in the case, that the heroin was foisted on the appellants, that no heroin powcier was actually recovered, that weiSht of the recovered hereon was in doubt, that there was no evidence of safe custody A ancl as such for any of the above reasons the appellants be acquitted by

lil extencling to thern the benefit of the doubt. In support of his contentions he placed reliance on Ikramullah V The State (2015 SCMR 1002) ancl Syed Karim V

ANF (PLD 2003 Kar 606)

8.On the other hancl Learnetl Special Prosecutor ANF has fully supported the impugned jurigment ancl has contencled that the accused had been caught red hamlecl in a flat which they hacl ret.rted, that there was no doubt as to the weiglrt

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of the recoveretl l-reroin powder as proved by the chemical report which was positive and as such the prosecution hatl proved its case beyond a reasonable doubt and the appeals should be dismissed.

9.We have hearcl the arguments of the learned counsel for the Parties, gone through the entire eviclence which has been reacl out by the learned counsel for the appellants, the impugnecl juc{gment with thelr able assistance antl have consiclered the relevant Iaw.

10.ln our view after our reassessment of the evidence we are of the view that the prosecution has proved its case beyonci a reasonable doubt against tl.re appellants for the following reasons:-

(a)That the FIR was registered with promptitude giving no tirne for concoction keeping in view that as Per the prosecution evidence it

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took about eight to nine hours to count and weigh the large amount of capsules ancl couttt the onions and the S.161 statements were recorclerl promptly u'hich were not significantly improved upou bv any PW at the time of giving evitlence.

(b)That the arrest ancl recovery was made on the sPot in a flat on the pointation of a spy informer and the appellants were caught reti harrc{ecl with the narcotics by the police/ANF whose evidence fully corroborates each other in all material respects as well as the prosecution case. lt is it u'ell settled by now that the eviclence of a police/ANF witness is as reliable as any other witness provieled that no enmity exists between thetn anci the accused anr'l in this case the police/ANF PW's have no enmity with the appellants anr'l the appellants have ar.tnitted in their evitlence that the police/ ANF ^ had no enmity with therr aucl in fact wcre disintercsted witnesses

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who had no reason to falsely implicate the appellants ln this

SCMR

respect reliance is placed on Iiaz Ahmed V The State (2009 ee).

(c)That the flat had been rented by the appellants in which the arrest ancl recovery was made ancl according to PW 3 Muharnmecl Iqbal who l-rad rented the flat to one o[ the appellants (which belonged to PW 4 Ali Raj) the appellants had told him that thev wanted to use a patt of the flat as a go down for storing onions and potatoes antl a few clays before the raid he saw onions bein2i tlroppecl at the flats wlrich he l-rad rented where one of the appellants was The lease agreement was exhibited at trial Present.

Neither PW's 3 ancl 4 who were involved in the leasing of the flat hacl any enmity witl.r the appellants anc'l had no reason to falsely implicate then in this case

(ci)That there are no major contradictions in the evidence of tl.re PW's ancl it is rvell settled by now that minor contradictions which clo not effect the materiality of the evidence can be ignorecl ln this

resPect reliance is placed on Zakir Khan V State (i995 SCMR 7 (e) That we clo not fintl any cleficiencies in the weighing of the narcotics ancl that the correct weight has been recorded as per memo of recovery antl chemical report'

(f)That the recovered narcotics were kePt in safe custocly at thc Malkana and were sent for chemical analysis without any clelav ancl such chemical rePort was Positive and compliecl with all relevant legal requirements.

(g)'Ihat is extremely clifficult for such a large amount of heroin to be foisted on the appellants which is usually not readily available with the police/ANF and if the police/ANF had wanted to falsely implicate the appellants they would not have wasted their time making up an ingenious story of the narcotic capsules being hidden in onions and even recovering 1,000 KG of onions, glue and cuttil.tg equipment for the purpose from the flat. They would l.rave simply

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foistetl tl.re apPellants with a plastic shopper full of narcotics' Instead all the aforesaicl onions, cutters, glue etc were recovered along with the heroin and even 84 preserved onion samples were exhibited at trail where some of the narcotics hatl been hitlden'

(h)That since onions are perishable goods most of tlre recovereci I 1,000 KG of onions (less the 84 which were exhibited) wete auctioned off and evcrr tlle auction receipt and receipt of Payment was exhibited ancl as such they were undoubtedly in the flat and were recovered along with the narcotics at the time of the raid'

(i)That although no inllepenr'lent mashir was associatctl with the arrest and recovery of the appellants it has corne in evidence that the PW's asked inclependent Persons to become lnashers lrut they refused and the police /ANF in any event had to nrove quicklv to ensure that the accusecl did not leave the flat with the narcotics' Even otherra,ise S.103 Cr.PC is excluded for offcnses falling under the Control of Narcotic Substances Act 1997 by virtue of 5 25 of that

(j)There is no legal bar for tl-re complainant also being the 10 of tl.re

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case as ir.t this case

11.Thus, for the reasons mentionecl above, we find that the Prosecution has proved its case beyond a reasonable doubt against the appellants and the impugned judgment is upheld and the appeals are dismissed' 12 The appeals are clisposed on iu the above terms tqil ND6d ztf,z)z-

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