SAJID REHMAN & ANOTHER (Appellant) VS THE STATE (Respondent)

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IN THE HIG HCO URT OF Ilr H Presentl Aph't Mt. lustice lvlohannad KaitrLKhan MLlustice Khadim Hussnitl lufito CRI IN AP o o 20

'1. Saiid Rehman son of Sardar Khan Appcllants 2 Shahid Habib son of SYed Habib through Mr. Nlamoon A' K' Sherivani, Advocate.

for State: Mr. Abrar Ali Khichi' Addl Prosecuto! Genelal Sincth

Datc of healing 77.U.2A22

Date of announcement: 2707-2022

IU DG MENT

- Saiirl Rehman and Shahid Mohammad Karim Khan Agha' ) APPellanB against the imPugned Habibhave preferred this C minal APPeat leamed li Additional Sessiotrs judgment dated 1210 2020 passed by the in S€ssion Car€ No 1959 of 2019' FlR No138of '20t9 lUafir Karachi l,rage, whereby the !/s.6/9-C, CNS Act 1997 of PS AitPort Karachi Habib have been convicted under appeliants Saiid Rehman and Shahid to lile lmprisonment and Section 9-C CNs Act, 1997 and each sentenced of Payment of fine they each finerl Rs.5,00,000/- (Five Lac) anrt in default shall further undergo SJ of 0l onths' as Pe! FIR No138/2019'

2.The brief facts of the prooecution case at f5 AiiPor! Karachi are under Section 6,/9{ CNS Act 197 tedstered at main National Highway' Malir that on 06-11-2019 at about 0330 hou6' Muhammad Husain of PS Halt, Karachi a Police Party headed by SIP namely Sajid Rehmart Airport police aPPrehended the accused peraons sonofsardarKhanandShahidHabibsonofsyeclHabibandrecovereda Carton contdininB 20 of Garda Chars weighing 23 Kilograms Pa(kets No'TTB{13 in Presence o[ flom cabin of Oil Tanker bearing registntion

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Ilrashils which accused Sdid Rehman wa$ drivin& while accused Shahid I Iabib was sitting beside him, thus the instant FIR was rc€istered.

3.After usual inve8tigation the case was challoned and charge was framed against both the accused to which they both denied all the allegations lcveled against them alld claimed tiial.

4.Thc prosecution to prove its case examined 03 PW's who cxhibited various documents and other items in support of its case. The app€llants rccorded there statements under section 342 Cr.IrC whelein they both claimed false implication at the hands of the police. Neithcr rhe appellants examined themselves on oath nor called any witness in support of lts defence case.

5.Learncd Judge of the trial cou.t after hea ng the leamed counsel for the appellants and assessment of cvidence available on rc<ord, vide judgment dated 72.70.2020, convicted and sentenced the appellants as stated above, hence these appeals havc been filed by the appcllants against their convictions.

6.The Iacts of the case as well as evidence produced bcfore thc kial cuurt find an elaboratc mention in the impugned iudgment, therefore, the sarne ale nOt reproduced here so as to avoid duplication and unnecessary repetition.

7.karned couns€l Io! the appellants has contended that the appellants are completely innoccnt and have teen falsely inplicated in this cas€ as they refused to pay a hibe to thc police; that thete are contradictions in thc evidence of the PW's and as such thele eyidence cannot be safely lelied uporf that the truck from which the nat.otics were recovered was not seized; that the narcotics wete not kept in saJe custody from the time of their recovery to the time when they were sent Ior eirerricai examrlaturn and that tor any or all oi the above reasons the appcllants be acquitted of the charge by extending them the bencfit of the doubt. In support of his contentions he placed reliance on the cases of Abdul Ghani v The State (2019 SCMR 608). A[lrad Ali v The State (2012 SCMR 52, Abrar Hussain y The State (2017 P Cr.L I 14), Mst. Sakina RaIrEan v The State (2021 scMR 451) and Asad v The Srate (2021 YLR

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8.On the other hard leamcd APG has fully supported thc impugned iudgment. In particular he has contendcd that one of the appellant's was the driver oI the car whilst the other appellant was sitting in the front passenger seat, tlat they were both caught red handed on the spot with a huge quantity of narcotics; that the natcotics wete kept in safe custody from the time of thcir recovery to the time when the na.rcotics wele sent to chemical examination which lead to a positive chemical report and as such their appeals should be dismissed. In support of his contentions he placed reliance on the cases of Ibrar Ullah v The State (2021 SCMR 128), Alt Akbar v The State (2020 SCMR 1225) and chulam Qadi! v The State

(PLD 2006 SC 6.1).

9.We have heard the arguments of the learned counsel for the parties/ gone through the entilc cvidence which has been rcad out by the leamed counscl for the appellants, the impugned judgment with their ablc assistance and have considcred the relevant law including that cited at the bar.

10.After oul reassessment oI the evidcnce we find that the Prosecution has proved its case beyond a reasoaable doubt against the aPPellants for thc following reasorsi

(a)That the FIR was lodged with PtomPtitude giving no lime for concoction and the 5.161 Cr.PC statements oJ the witnesses were also lecorded PromPtly lvhich were not significantly improved uPon by any PW at the time ol giving evidence.

(t)That the vehicle in which the aPpellants were kaveling in and where it would be when it was stopperl was based on sPy information which turned out to be corrc<t.

(c)Ihat the arest and recovery was madc from the vehicle in which the appellants wele tiavelling hidden under the drivers seat atrd as such the appellants were both (aught red handed with the n.rcotics on the spot by the police whose evidence Iully coEoborates each other in all nraterial respects as well as the prosecution casc. It is wcll scttled by now that the evidence of a police witness i5 as reliable as any other $'itncss Provided that no enmity exists betlveen them and the accused and in this case no enndty was even suggested by the accused against any of the PWs. Thus we belicve the Police evidence which is corroborative in all mateflal resPects.

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Reiiance in this respect is placed on the case of Mustaq Ahmed V The State (2020 SCMIT 474)

(d)That there arc no major contradictions in the evidence of the I,W's and it is wcll settled by now that minor contradictions which do not eflect the materiality of the evidence can be ignored. In this rcspect rcliance is placerj on Zakir Khan V State (199s SCMR 1793).

(e)Most aignificantly the narcotics werc recovered from appel.lants whilst sitting in the truck which was being driven by one of the appellants from whom a valid drivers Iicense was recovered along with the narcotics when the truck was stopped and thus there is ,to doubt that the appellants lud ectual kaowledge of the narcotics which were being traruported. In tfus respect in the similar case of Nadir Khan V State (1998 SCMR 1899) it was held as under, "We lwrc gone through tla aidetce on record o d fnd thnt tle petitioners had. the chorye of oehicb .[or a lorg joumey startitlg laont Peshiu,ar a d terminating at Knrachi. They lud the dit)itg licenses olso, As being parson in.lurye ol tlu uehrcle for such a long joumty, tlty must be sadd.led utith the necessary knotoledge uifh regnrd lo the z'ehicle and its .o lefils. Th( prohnbiliti$ or llk prcsl tptions ale all dependcrlts on tlk clrcurfistalces of eadl cax and in tlu present case tlrc cjrcumstnnces fu y establish tlait knouledge and auareness of the contois and tlEir eq',lafinlion shoutitrg tlu ignonnce actually sttenstlgtle that cotlcl sion rfilher tl:r'j. tLpakining it" ,

Fuithermore, Undet Section 29 CNSA 1997 once thc recovery has been proven as in this case the onus shifts to the accused to show his inn(xence in that at least he had no knowlcdge of the narcotics. None of the appellaats have been ablc to do so in this case. [n the case of Mehboob-Ur-Rehman V State (2010 MLD 481) it was hcld as under in this respect at P485 lia-ra 14 "Undtr the prot'isions ol section 29 of the C.N.S. Act once tlv re(ouery of anlrubands u)as mdde fton a pit)nte car uhich tl'ds W then in co tlol of llv tulo appellants, the burdcn to etplain thc possession tllgthet actual or co stnotiw tjas on tlw iryellants to d.isclnrge but teithzr they lnoe led aay euidencc itr delence nor lnoe fippeqred i di€proof of llv proseattiotl euidence undet scctiot 34AQ), Cr.P,C. thus lhe clarge laid upon tlvn lus renniird uwehulled".

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(f)That it would be extremely difficult to foist such a large amount of charas being in total 23KG's as mentioned in Mustaq Ahmed'e case (Supra) and The State V Abdali Shah (2009 SCMR 291).

(g)That there was no delay in sending the chemical Jeport for analysis which turned out to be positive, (h) That the recovered narcotics were kept in safe custody from the time oI their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the samc has eyen bcen madc. 'lhe narcotics wcre sealed on the spot, remained sealed in the malkhana before bcing transpo ed to the chcmical cxaminer in a sealed condition as per the chemical report by PW 3 Muhammed lqbal with the required prot<rcols being carricd out. ln this respcct reliance is placed on the Supreme Court case of Zahid and Riaz Ali V State dated 03-03-2020 (unrcported) in Jail Appeal No.172 of 2018. Although this case concerned rape since it concemed the safe custodv o[ certain swabs being sent to the chemical examinq we consider its findings to be equally applicable to the safe custody of narcotics bein8 sent to t}le chemical examiner lvhich held as under at para 5 in material part "'lhe chenical emmirter's repttrt produccd Lr!/ tle ln.ly tloctor statcs that llg seals o/ specimets xnt for clvtnicnl exonitatiott ?Lprc rcceited intact ond it luts the clunrical emmircr tho lad brokca ope the seils, therefore, lhe conte tion of tle petilioners' Ieanrcd cortnsel rcgntrling lhp sflf. frnnsni.si,n of llp spccirnetts is disounted both lry this jtct is tuell as W tlu fnct lhat no queslion l(,os ltut rcgnrding ta pering of tlte said seals."

(i)That although no independent masht was associated with the arycst and rccovery of thc appellants and nalcotic 5.103 Cr.P.C is excluded for offerues falling under the Control o( Narcotic Substances Act 1997 by virtuc of Section 25 of that Act. In this respect reliance is placed on the case of Muhammad Hanif V The State (2003 SCMR 12jZ).Even otherwise it was held in lbrarullah's case (Supra) that due to public apathy most citizens are not pleparcd to act as independent mashirs in such like cases.

0)That in dealing with nalcotics cases the courts are supposed to adopt a dynamic approach and not acquit t}re accused on technicalities. In th.is respcct reliance is placed on Ghualrn Qadir V Th€ State (PLD 2006 SC 61) which held as under at para 8 P.66.

"We are not ogreenble tith the contention of the

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Flou,erc" were found ling on tle roof of the oehile tlrerelore, u techni.ality, which is being pointetl out by llv lgamed counsel, unuld not be suficimt to acquil hii. Ifl a.ldition to it in sucblike cases Courts are supposed to dispose o/ the matter with dltnqmlc qryrcach, instead of scquitting tlu drug pad.d.lers ot techflicalities, as it lrns beefl hekl in (199i SCMR 785) atil (PLD 1996 SC 30s"| (bold added)

(k)No doubt it is for the prosecution to proye its case agairlst the accused beyond a reasonable doubt but we have also considered the de{ense case which is one of false implication simpliciter and have only belatedly claimed that the police falsely implicated them as they would not pay a brib€. That neither of the appellants gave evidcnce on oath ot called any DW to rcbut the prosecution casc in the face of ovcrwhelming prosecution evidence as discussed above wc disbelicve thc defencc case of {alse implication.

11.Thus, for the leasons mentioned above, we find that the prosecution has proved its case beyond a reasonable doubt against the appellants and as such their convictions and sentences in the impugned .iudgment arc upheld and their appeals are dismissed.

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