SARFRAZ AHMED S/O NAZEER AHMED (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT KA RACHI

Criminal )ail Appeal No.244 of 2014 Present:

Mr. Iustice \!9fu11414ad Karim Khan Agha l}lr. /rr-s tice Abdul Mobeen Lukho

Appellant Sarlaraz Ahmed s/o. Nazeer Ahmed through Mr. Muhammad lqbal Chauclhrv, Aclvtrate.

For State: Mr. Muhammad Iqbal Awan, Deput,v Prosecutor General.

Date of Hearing: 77.03.2020

Date of Announcement: 30.03.2020

IUDGMENT

Mohammad Karim Khan Agha, J.- Appellant Sarfaraz Ahmed s/o. Nazeer Ahmed has preferrecl this Criminal Jail Appeal against tl.te impugned judgment rlated 05.07.2014 passed by the learnecl Special Court-I (C.N.S.) Karachi in Special Case No. 285 of 2014, F.l.R. No.146 of 2011 under Section 9(c), C.N.S. Act, 1997, registerer.l at PS Airport Karachi ^ whereby the appellant has been convicted under section 265-H(2) Cr.PC for the commission of oifence punishable u/s.9(c) Control of Narcotir' Substances Act, 1997 and sentenced to undergo lmprisonment for life anrl to Pay a fine of Rs.3,00,000/- (Rupees Three hundred thousanci onh,). ln case of default in payment of fine he was ordered to further undergo Simple Imprisonment for one year and six months rnore. The l.renefit ol section 382-8 Cr.P.C. has also been extendecl to the appellant for tht: period which he has already undergone as under trial prisotrcr ir.r this case

2.The brief facts of the case as per FIR are that on 12.05.2011 at 2015 hours, Inspector Abdul Ghaffar Korai, SHO, 15 Airport on bt'half of the State lodged his report stating therein that he along with ASI Abdul ( Ghaffar, HC4343 Muneer Ahmed, HC-1,071,7 Allauddin, PC-.I6273 Amce.r Muhammad Khan, PC-15928, javed Fazil on rnobileJll, and callecl government Car patrolling-I, on which SIP Qamaruddin, PC-5760, Atrelul Ghaffar. Driver/PC-15661 Nazaar Khattak were busy in detection of crime and patrolling in the area. During patrolling tlrr receipt of spl infornration Lf

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given by the special informer they reached at White Bodv Hangar roacl, Terminal No.1, Airport Karachi, where on the pointation of special informer, he stopped charade red colour car bearing registratiorr No.C- 6363 and apprehended the accused present in the car. He inquired name

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etc; from the accused on which he disclosed his name to be Sarfraz Ahmed s/o Nazeer Ahmed. Then due to none availability of private witnesses he cited SIP Qamarddin and ASI Abdul Ghaffar as mashirs, and then took the search of the car, and secured orange color shoppers lying on back seat of the car. He checked said shoppers and from iwo shoppers hc'securerl six packets from each shopper, anti from remaining one shopper he secured five packets, of yellow antl recl colour on which Nestle Netltr Fortified was written, and total seventeen packets were recovereel bv him. He then opened the packets one by one and found that heroin powcler was packed in each packet viz: one Kilogram each and total seventeerl Kilogram heroin powder was recovered. The accused committecl the offence punishable under Section 6/9 (c) Control of Narcotic Substances Act, 1997 therefore accused was arrested on the spot at 1905 hours. He separated five packets of heroin powder weighing Iive Kilograms trnci sealed the same as sample for chemical examination. He also seale,.l the ^ remaining twelve packets of heroin powder weighing 12 Kilograms separately. He took the personal search of the accused and securetl one mobile phone China of black colour, from front pocket of his shirt. arrcl one purse in which original CNIC bearing No.42507-7577227-5 oi the accused, his PIA Service card No.PC-59939, one Airport entry carcl of accused bearing No.01481, and cash of Rs.1525/- from back side ptrket of his pants. They then brought the accused along w'ith secured ProPertv at PS where he lodged his report against the accused,

3.After registration of case the investigation of this case was entrusted to SIP Mumtaz Hussain who started investigation, ancl visiteel the place of incident on the Pointation of complainant and prepared such memo. He then recorded 161 Cr.PC statements of PWs. On 13.5.20]2, lte ( a-fter obtaining permission sent the sealed parcels to the chernical examiner for examination and report. He wrote letter for calling data information of accused Sarfaraz, Akbar and Masoom which was receivetl by him. FIe obtained synopsis view of accused Sarfraz Ahrned of PIA department, verification of CNIC of Safiarz, obtained record of accusetl

Muhammad Akbar and Masoom Ali from ASF. He raidecl on the house of Muhammad Akbar and Masoom Ali, but could not succeed to arresl them. He received chemical report, and letter from Afzal LIMOUSIME SERVICES CAR AND VAN RANTAL SERVICE dated 24-5-201,4, in w,hich Y it st;ted that the accused Masoom Ali was absent on 12.05.2011. ancl accused Muhammad Akbar remained absent on 13.5.2011. I {e also obtained computerized data from the Excise Office in respect of the recovered car. Then after completion of usual investigation he submittecl challan in the court, while showing accused Sarfraz Ahmed in custodv and accused Muhammad Akbar and Masoom Ali as absconders.

4.After completing the usual investigation charge was framed against the appellant to which he plead not guilty and claimecl to be triecl.

5.The prosecution to prove the charge examined 03 PW's who exhibited various documents and other itetns in support of thc prosecution case where after the prosecution closed its side. l-he statement under section 342 CI.P.C. of the accused was recorded in which he denied the allegations leveled against him and claimed false implicatior.r. t However, he did not opt to examine himself on oath or call any witnesses in support of his defense case.

6.Learned Special Court-i (C.N.S.) Karachi after hearing the learneel counsel for the parties and assessment of evidence available on record, vide judgment dated 05.07.2014, convicted and sentenced the appellant as stated above, hence this appeal has been filed by the appellant against his conviction.

7, The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned iudgment, therefore, the same are not reproduced here so as to avoid duplicatron and unnecessarv repetition.

( 8. Learned counsel for the appellant has contended that the aPPcll.lrlt was falsely implicated in this case, that the Person who transcribed the FII( did not give evidence, that it is completely unnatural for a person carrl irrg narcotics to keep it on the back seat of his car, that the narcotic was not sealed on the spot and that there was no evidence o[ safe custotlv, that the,

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car did not aPpear in the sketch which the IO produced, that there hatl been a violation of 5.103 Cr.PC and that for anv of the above reasons tlle appellant should be acquitted of the charge by extending to him the benefit of the cloubt. In support of his contentions hc has placecl reliance

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on Qaddan and others V The State (2017 SCMR 148), Ikramullah and others V The State (2015 SCMR 1002) and Mst. Irshad Begum alias Shadan V The State (2016 P Cr. L I 407).

9.On the other hand learnecl DPG has futly supported the impugncl1 judgment and has contended that the appellant was arrestecl on the sPt)t where the recovery was made from him whilst he was clriving his own car, that Section 29 CNSA will be applicable, that there was no clela-t' itr sending the chemical report for analysis which rePort was positive anel was kept in safe custody and thus the prosecution has provecl its cast' beyond a reasonable doubt and as such the appeal should be dismissecl ln support of his contentions he placed reliance on Arshad Hussain V The State (2011 SCMR 1400), Mehboob-ur-Rehman V The State (2010 Nll-t) 481), State through Regional Director ANF Peshawar V Sohail Khan (2019 SCMR 1288), Muhammad Kamran V The State (2019 SCMIT 131+) t and Hussain Shah and others V The State (PLD 2020 SC 132)'

10.We have heard the arguments of the learned counsel for the Parties' gone through the entire evidence which has been reacl out bv the learnetl counsel for the aPPellant, 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 for the following reasons:-

(a)The FIR was registered with promptitude giving no time for concoction and the 5.161 statements were recordecl promptly which were not significantly improvecl upon by any PW at the time o[ giv ing Y evidence.

(b)The FIR is not a substantive piece of evidence so we do not consider it fatal to the prosecutit)n case that the person who transcribed the FIR was not examinecl especially as it was exhibited in evitlence ln this reipect reliance is placed on Muhammed Akram V,

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State (2006 SCMR 1567)

(c)That the arrest and recovery was made on the sPot and the appellant was caught red handed with the narcotics by the police whose evidence full,v" corroborates each other in all material respects as well as the prosecution case. It is well settk:c1 by now that the evidence of a police witness is as reliable as an1' other witness provided that no enmitv exists bctu'et'n them and the accused anci in this case no enmity has been suggested against any of the police PW's and as such the police had no reason to implicate the appellant in a false case. Thus we believe the ptrlice evidence which is corroborative in all material respects. Reliance in this resPect is placed on the unreported recent SuPrAme Court case of Mushtaq Ahmed V The State dated 09-01-2020 in Criminal Petition No.370 of 2019 t,here it n'as held in material part as under at para 3i

" Prosecution cnse is lingetl upon tlt stntentertts of Aamir Masood, TSI (PW-2) and Abid Husssin, 336-C (PW-3); being offciats of tltt Republic, they do not seen ttt luu'a lt n\( lo gind against the petitioner, i tercepled nt i plrblic place during roulite senrch. Contrabtnd, considernble in qtrnntity, annol bt' ltossibly ( foisted to t'abicnte a t'ake clnrge, tltnt too, roithout nnrl appnre t reason; ruhib furnishtng epidence, botlt tlrc arifttesses remnined througlnut consistent and confdence inspiring and as such can he reltetl upon tuitltout a demur."

(d)That the spy information about the car and ils likely route which was Pointed out b1' tl.re' s;rv informer fully corroborates the Prosecution case since this is the car in which the appellant was stoppecl ancl arrested in whilst proceetiing along the informetl route and the narcotics discovered which was recovered along with the car.

(e)That there are no major contradictions in the evidence of the PW's and it is well settled by now that minor contraclictions which clo not effect the materiality of the evidence can be ignored ln this respect reliance is placed on Zakir Khan V State

(1995 SCMR 1793).

(f)Most significantly the narcotics were recovereel Irom tlre car which was owned by the appellant and he was tlre only person in the car and as such there is no doubt that the sccused had actual kntnuleclge o( the narcotics which were being transportecl. The car was recovered along witlr the narcotics. ln this rcspccl,

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in the similar case of Nadir Khan V State (1998 SCMR 1899) it was held as under,

"We hape Sone tllrouyh tlte ez'idencc on rtt'orrl and fnd that the petitioners had the tfurge of aehicle for a long journey starting from Peshatpar anrl terminating nt Knrachi. 'flrcy Imd the dritting licenses aLso. As berng person inchnrge of th. whtcle Ior such a long journey, they nust be snddled rpith tlrc necessary htouledge with regard to tle ?,ehicle find its contents. The probabilities or tlv ptesumptions are all dependents on tlrc circutnstattces of ench case and in the present case the circunstnnces futly establish their knordedge nnd nrutreness of the contents and their explanation shoruing tlu ignorance ac htally s tre ngthe ns thn t conclu si otl rather than weakening it" ,

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

Furthermore, Under Section 29 CNSA 1997 once the rec()verv has been proven as in this case the onus shifts to the accused to show his innocence in that at least he hatl no knowlc'dge oi thc narcotics. The appellant has not been able to do so in this case. ln the case of Mehboob-Ur-Rehman V State (2010 MLD'lUI) it was held as unller in this respect at P485 Para 1'l " IJnder the prot,isions of section 29 of the C N.-c. Acl once tlu rercuery of contrabnntls uns made.front n prittate car uhich u,as by then in control of tlrc tuo appellants, the burden to explain the possessiort zohether actual or constructit)e runs on tlt nppellatrts to disclwrge but neither they lnte led any ertidrnce in defence nor hmte appeared it disprooi o-f tlte pros?clttion euidence under section 340(2), Cr.P.C. tluts tlte tlrnrge laid upon them has remained unrebutted" .

(g)That it would be extremely clifficult to foist such a Iarge amount of heroin being in total 17 KG's as mentioned in Mustaq Ahmed's case (Supra) anel The State V Abdali Shah (2009 SCMIT 291).

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

(i)That the recoveretl narcotics were kept in saft' custody from the time of their recover)' to the timc when they were taken for chemical analysis ancl ncr suggestion of tampering with the same has even been

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made. The narcotics were sealed/Placed in a stitchecl cloth bag on the sPot, remained sealecl in the malkhani before being transported to the chemical examiner by PW 3 Mumtaz Hussain who was examined ancl the narcotics reached the chemical examiner in a sealed condition as per the chemical report. In this respect reliance is placetl on the rccent Supreme Court case of Zahid and Riaz Ali V State .l72 claied 03-03-2020 (unreportecl) in Jail Appeal No of 2018. Although this case concerned rape since it concerned the sa{e custodv of certain swabs being sent to the chemical examiner we consider its firldings to be equally applicable to the safe custodv oi narcotics being sent to the chemical examiner whicll held as under at para 5 in material part; "The chemical extuniner's report produced by thc lndy rloctor stntes thnt the senls of specimens sent Jor chemiul examinntion 'erc rcRiI'ed intn.t ttnd il rt'rts the chemical exaniner t to lnd broken open the seals, theret'ore, tlrc contentton of tlrc petitroners' Ienrned counsel regarding llu sat'e transmission of tlrc specimens is discounted both by this fnct ns t'ell ns by the fact that no Ercstion runs put regtrding trttnperirtg of the said seds."

O Alt relevant police entries were cluly exhibitecl.

{ (k) That although no independent mershir u'as associated with the arrest and recovery of the' appellant it has come in evidence that no Private person was available to become an intlependent mashir at the time of arrest and recovery.Everr otherwise 5.103 Cr.P.C is excluded for offenses falling under the Control of Narcotic Substances Act 1997 L''y virtue of Section 25 of that Act. ln this rcsPect reliance is placed on the case of Muhammad Hanif V The State (2003 SCMR 1237).

(l)No doubt it is for the prosecution t() prove its case against the accused beyond a reasonable doubt but we have also considered the defense case which w't' disbelieve. This is because the aPPellatlt has simpll' raised the bald allegation that he was falsely implicated in the case yet he has suggested no enmit) wiih any PW who as such had no reason to falsell' implicate him in the case, that he was a PIA empiovee with fall access to the airport and as such his arrest ( near terminal one of the airport fits in with the prosecution case, the appellant made an extra juclicial confession before the police (aithough inadmissible in evidence) that he u'as delivering the narcotics t() Akbar and Masoom, The police followed up on this confession and obtalned the CDR tlata of Akbar anll Masoom and actually triecl to arrest them in this case' lf the appellant had been falsely implicatctl then tlre,

police would not have Iollowetl up on his exbajudicial confession as to who he was clelivering the drugs to both of whom were declarecl as absconders which in our view indicates that his defense of false implication callnot be believecl especially as he was caught red handed with the t narcotics alone in his own car near his place of work for which he has no explanation.

72.Thus, for the reasons mentioned above, we find that the' prosecution has proved its case bevond a reasonable tioubt against thc appellant and the impugned judgment is upheld and the appeal is dismissed.

13.The appeal is disposecl of in the above terms.

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