MUHAMMAD SHAHBAZ S/O MUHAMMAD RIAZ (Appellant) VS THE STATE (Respondent)

\a

IN THE HIGH COURT OF SIND H, KARACHI

Criminal Jail Appeal No.919 of 2019

Prcse l:

Mr,lustice Mohar rnad Karifi Khafl Agha Mr. Iustice Khadirn HussdifiTut io,

Appellantr Muhanrmad Shahbaz S/", Muhammad Riaz lhrou8h IUr.

Muhammad rarooq Advocate

Re6pondent: The State thtough Mr. Habib Ahmed, Special Itosccutor ANF.

Date of heating; 11.01.2022.

Date of Announcement: 74.Ot.2022

IUDGMENT

I\,IOHAI\,II\,IAD KARIIII KHAN AGHA, I:- The a ppellant Muhammad Shahbaz S/o. Muhammad Riaz has preferred tlte instant aPPeal agai't5t the judgment dated 03.06.2019 Passed by Leamed SPecial Cou*JI (C'N S ) Karachi in SPecial Case No.76 of 2013 ariting out of Crime No.05 oI 2013 u,/s 6/9-C read with

sections 14,/15 of the C.N.S. Act, 1997, PS ANr-C, Karachi whereby the

appellant was awarded lile imPrisonmcnt along with fine of Rs 1'000'tXX) (Rupees one mitlion only). In delault of Payment of fine he has to undelgo io Iurther R.I. for 05 yeais. Benefit of section 382-8 Cr'P C has alEo been extendPd the appeUant.

2.The brief facts o{ the Plo€ecution case are that on 18 01 2m3 at about 2100 hours Complainant SI Abid Raza Shah of I'S ANF-Oifton, Karachi along $'ith

other ANF officials reached at KICI Yard No E1324AI Ior checking the "hold"

container bearirg No.CLHU3682531 and recovered 58 Kgs' (g'oss) heroin

powder concealed ifl '10 wooden tables and arrested accused Mohammad Shahbaz on the sPot and during inveetigation it revealed that accused Bilal

and export documents of Qamar son of Qamar Hussain had providecl E-Form his company M/s, BD Entelp ses for export of such furniture in I'hich heroin the FIR was concealed in 10 wooden tables as lnentioned above After lodging

1l

investigation was started by Inspector Mohammad Afzal, who fumished the charge sheet against accused Pelsons on 09.02.2013 and placed accused Mohammad Shahbaz in Column No.3 being arested, wheleas he placed five accused pe$ons in Columa No.2 with Red lnk hcluding the accus€d Bilal Qamal and after accepting the charge sheet the copies were suPPlied to the accused Mohammad Shahbaz and PueedinSs initiated against the abscondinS accused pelsons and they wele declared Pr(rclaimed offenderc. Late! on a formal charge was hamed against the accuscd Mohammad Shahbaz to which hc pleaded not Suilty and claimed to be tried. AIter recording the evidence of 3 witnesses co-accused Bilal Qarna! was arested and an amended charge was framed agaiist both the appellant and his co-accused Bital Qamar who both plead not guilty to the amended chaJge and ctaimed trial.

3.The prosecution in order to Prove its case examined 08 witnesses and o(hibited various documents and other items The statcment of the accused wele recorded under Section 342 C!.P.C in lehich they both denied all the allegations against them. The aPPellant gave evidence on oath but his ccFaccused Bilal Qamar did not. Ncither of the accused called any witness in suPPort of their

defence case.

4.After appreciating the evidence on record the trial court convicted thc appellant and sentenced him to lile imP sonment as stated above, hence. the appellant has filed this appeal against conviction, The co-accused Bilal Qamar was acquitH a.d the State has not filed any aPPeal against his acquittal'

5.The facts of the case as well as evidence produced before the trial 'ourt find an elabolate mention in the imPugned judgment dated 8 06 2019 passed bv the hial court and, therefore, the same may not b€ reProduced here so as to avoid duplication and unrtecessary repetition.

6.Learned counsel for the aPP€ltant has contended that the aPPellant is complctely innocent and tllat he has been falselv implicated in this case by the ANI; that nothing was re'covered from him; that the so called undertaking Siven by him was fabricated and his signature had been forged; Orat thele was no evidence that the recovery of the narcotics had been kept in safe custodv from,

lb

the time of their recovery until they were sent Jor chcmical examination and that for any of the above reasons the aPPellant should be acquitted of the charge by being extended the benelit oI the dout't. In suPPort of his contentions he placed reliance on the case of The State V Imam Bakhsh (2018 fMR 2039).

7.On the other hand Special Prosecutor ANF aPPearing on behalf of the State has fully supported the imPugned iudgmmt and contended that the aPPeal was without medt and should be dismisscd.

8.We haee heard the arguments of the learned counsel fol the Parues, gone tlEough the entire evidenae which has been read out by learned coulsel for the appellaat, and the impugned iudgment with their able a6sistance and have considered the relevant law including the case law cited at the ba,,

9.After our rcassessment of the evidence we find that the prosecution has provetl its case beyond a reasonable doubt again$t the aPPellant for the following reasons:-

(a)Firstly, it is oI no assistant to the aPpellant that the co- accused was acquitted as the evidence against the cG' accused was far lesser than tllat against the appellant whose case was on a comPletely dilferent footing.

(b)That the FIR was lodged with PlomPtitudc giving no time for concoction and the 5161 Cr'['C statements of the wihress€s were also recorded prompdy which were not significantly improved uPon by any PW at thc time of giving evidence.

(c)That the appellant was arrested on the sPot when the contain€r was opcned in his presence and thc heroin was {ound con ealed in l0 wooden tables The appellant had no reason to bc in the secured examination area unleBs he lvas involved in the shipmcnt. Both he and the clearing agent EW 2 Wajahat Minhas) were both present at which time Pw i wu;of,ri Minlas provided the ANF wikresses with the relevant shipping documents. ln fact the aPPellant has admifted his prescnt at the scene but states that he was a u orker at the port and has been fatsely imPlicated by the ANF. The aPpellant did not cross examine any witness on this line of <leience and only laised it at the time of his S 342 Cr.rc statement and his evidence under oath fle did not call any co-worker in his deferrce or Produce any other docunrent to show that he was working at the lelevant Place at the relevant time and as guch we disbelieve his defence which we find to be a comPlete aJte! thoughtl

(d)That it has come in evidence that the aPPellant was the proprietor of two companies involved in the exPort business and also had bank accounts with the Bant of Punjab in resped of the two companies so it is Ploven that he was in the export business and was not a lowly laboler at the Port as claimed by him,

(e)That PW 2 Wajahat Minhas the clearing agent gave evidence that he had on.e already arranged such a shipment to Malaysia in 2012 with the aPPellant and abroncler Muhammed Tahir whereby E-Form, invoice and undertaking had been provided to him and that he had once aSain arranged such a shipme[t for the aPpellant which was the shipment in question which had been blocked by the ANI. According to his evidence he was Present when the container was opened by the ANF and tlte aPPellant Pointed out that the narcotics were hidden in ten wooden tables at the back of the cont-ainet which only the aPPellant would have known about. His evidence on the recovery of the narcotics on the pointation on the aPPellant in a hidden place is also colroboraled by tlic ANI witnes5es. This witness was an independent witness and no enmity was suggcsted betwecn him afld the aPPellant and thus had no leason to falsely implicate the aPPellant in this case, he was not dented during crcss examination and he gave his evidence in a straightforward manner and as such we believe his evidence which futther confirrns tltat the appellant was in the business of exPort and wa,9 not a lowly port wo!ke!.

(Q That the appellant had given a siSned undetaking on stamp paper in respect of the consignnrent in the containcr from which the narcotics wele recoverd which dtectly conne.ts him with the (ontainer and its consignment in the following terme;

Exh.W6 container No.CLHU8682531,

f_ron1 Muhammad Shehbaz S/o. Muhammad Riaz, R/o. IIouse N0.06, Sh-eet No.09, Islam Nagar, Shahdra, lahore, CNIC No.35202-2883626-1 lo The Deputy Collector Custom East Warf- Karachi.

STATEMENT ON OATH

I thE applicont hiw to erryrt shiPfient hofi.lioafs nodcn litnit rc to Molnlsin tltkh I hale o\siSned to BD Enlerylrises Karachi aail ony ntttolics or illicit substnfiL:Es hm,e rccowred ltom ,,

inside thereof rlhose Jull respoflsibility shall ixpose upon me and for uhich I shall be mdy to t'ao all kind oJ legal procaedings. If dny kind of (tnrd ambiguous) found alich rcsponsibility shall olso shif upon me. I hooe tot Preparcd the said stuft/atticles under my superoision in my na*slap and I laoe 8i@n tts custotfi clearance responsibility to tlv K4slu EnterPises,

Sd/- Muhammarl Shehbaz

Witness: Sd/- Name: Shehzad Khurram S/o. Hazrat Gul Khan, R/o. llouse No.07, St eet No.Ol, Kot Shahbuddin, Shahdra, Lahore, Holding CNIC No.35202-7729503-3.

(g)That the amount of 58Kgs oI hetoin was too large an amount t; b€ foisted cspc.ially as it was hidden in wooden tables at the back of the containe! and that thcre aPPears to be no disPute that the narcotic was recoveled fiom the contairer and that the appellant was present at the time of its recovery.

(h)With regald to saJe custody we note that the containel was initially desealed by the custorr"s authorities however when lt was notcd that the container had been blocked by the ANI it was locked and guarded by the ANF untit the ANF raiding party arrived. There upon the nalcotics lr'ele recovered on the poi.ttation of the aPpellant hidden in the back of the container iI.l 10 wooden tables. The rrarcotics were weighed and sealed on the spot ,md then dePosited in thc Malkhana before being talen in a sealed condition for chemical exarnination by PW 8 Mazharurlclin as conJirmed by thc chemical report, no allegation of tamPering was made in resPect of the narcotics dur-ing cross examination and thus we find that the prosecution -provcn have saJe custody oI the recovered nalcotic ln this respect reliance is placed on the Supreme Court case of Zahid Rt , ,aJi v State dated m-o3-2020 (uruePorted) in Jail "oi Appeat No.172 of 2018. Although this case concerned laPe since it iinccrnert the saJe cuEtody of certain swabs being sent to the chemical examins we colrsid$ its findings to be equally applicable to the sa{e custody of nalcotics bcing seflt to the circmical examiner which held as under at Para 5 in naterial part "The c)unical emtritur's report producd bg the lady doclor slates tlr.l lhr .djals of sPecimens sent for chc,nical extmination. toere receioeil ifllnct afld il @as the clenic^l exaDtinel who lad broket open thc saals, tleteho, lhe & ention of the wtitioruis' learwd counsi ftldr in| lh? s le tmn\ntission of 'tht sycinPns is .liscounted both W this Iact as 1rcIl ns by lhcl

t1

foct that io question uas put rcgalditg tamPeiis of the soid (D'lhat the chemical report was positivc and the relevant protocols Jor testing were fouowed.

(.j) That the arrest and recovcry was made on the sPot on the pointation of the appellant by the police whose evidence fully corroboratc's each otlEr in all material respects as wcll as the prosecution case, lt is well settled by now that the evidence of a police witness is as reliable as any other witness provided that no cnnity exists between them and the accused ard in this case no proven enrniry lus come on record against any police officer. '[hus we believe the police evidence which is co oborative in all mateial resp€rts. Reliance in this respect is placed on the case oI Mustaq Ahmed V The State (2020 SCMR 47.1)

(k)That there are no maior conEadictions in the evidence of thc PW's and it is well settled by now that minor contladictions whi.h do not effect the matedalit_v of the evidence can be ignored. In this respect reliance is placed on Zakir Khan V State

(1995 SCMR 1793).

(l)That although no independe'nt mashir was associated with the arrest ancl recovery oI the appellant aid naJcotic 3.109 CI.P.C is excludcd for offenses falling under the Control of Narcotic Substances Act 1997 by virtue of S€ction 25 of that Act. In this rcspcct reliance is placed on the case of Muhamtnad Hanif V The State (20Gj SCMR 1234.Even otherwise as per evi'lence on record no independent person was prepared to become rushir due to Iear ofdrug smugglers.

(m)That h dcaling with narcotica cases the courts are suppGed to adopt a dyn-amic Bpproach and not scquit the accused on teclmicaliti€s. In thb respect reliancc is plaeed on chualm Qadir V The State (PLD 2006 sc 61) whirh held as unde! at para I P.66.

"We aft not ageeabb uith th? contention oJ the lenfitd ciunsl tEcaue frct retini$ tlat "PoW Fl!)uvrs" tLEtz lound lying o thc t@f of tc @hiclc therchn. llu techniolity, whidl is bain| poifllad out W tle lcarwd coutts4l, uauld flal be su|frdent lo atquil hinr. b adilition lo lt ifi such-like cascs Courts 4re suppoied to tlbpose of the fiaffer with dwaflic apprcach, instead ol acqtittlng lhe dflg pdddlers on tcchnicalities, as lt has beei hekl ln (7993 SCMR n and (PLD 7996 SC 305"). (bold added)

(n)No tioubt it is fo! the ptosecution to prove its case against the accu-sed beyond a reasonable doubt but we have also coruidered the defense case which is one of lalse implication simpliciter which we have alleady disbelieved in the face of reliable. kust worthy and conlidence irspiring piosecution evidence.

t

.c

10.'fhus, for the reasons mentioned above, we find that the Prosecution has proved its case beyond a reasonable doubt against the appellant and as such the impugfled judgment is upheld and the appeal is disrnissed.

Etq t",lz

JUDGE