REHMATULLAH S/O RAMZAN (Appellant) VS THE STATE (ANF) (Respondent)

IN THE HIGH COURT OF SINDH AT KARACHI

Elrlenti ML lilliti.c Mohan .td Knrifl, Klnrl AtLq ll{r, Iusti.c Khndint Hussahl T ni.,

CRIIIIINAL L NO.342 (]rr 7019

Appellantr Rehmatullah son of Ramzan through Mr. Muhammacl Farooq, Advocate.

ForState: Mr. Habib Ahmed, Special Plosecutor ANF.

Date oI hearing: 25.m.2922

Date oI aJuiounaement 31.01.2022

IUD G MENT

K.rim Kftin A8ha, J.- AfpFllant Rehmatollah son of ^{nhamm,d Ramzan has prefered this Criminal ApPeal against the imPugned judgment dated 29.05.20'19 Passed by the learned Judge, SPecial Court No.ll (C.N.S) Karachi in SPecial Case No 598 of 2015, F.l.R. No 43 of 2015 r/s.6/9-C, CNS Act 1997 of t'S ANF Cliftoo Karachi whereby the appellorrt Rehmatullah has been convicted under Section 9{ CNS Act, 1997 and sentenced to liIe knPrisonment with fine of Rs.10,00,000/- (One Million) and in defsult oI Payment oI (ine he shall further undergo R l of 05 ycar8.

2.The bief facts of the Prosecution case as Per FIR No 43/2015 are that on 12.11.2m5 at about 0230 hou$ at Raees Baba Bolan I{otel, Main Hub River Road, Karachi comPlainant SI Attaullah Khan Jadoon oI I5 ANF Clifton, Kalachi alongwith other ANF officials arrested ac'used Rehnratullah alon8 with a truck bearing Regish:ation No TAB-587 aid r€coyered 1000 packets of charas $'eighing 1000 Kgs concealed in the secret cavities made in the diesel tanls of the said truck and during the investigation it revealed that the above said accused Pergon in connivance wilh othpr co-a(cused and ab*conding accuscd Persons rlameh Karim sorr

of Haii Mi! Mohammad, Mst. Rashida wife oI Abdul Karim, Mir Khalid son of Mir Ahmed and Arif Khan 6on o, unknown facilitated and abetted to snruggle such recovered chara$ from Karachi to Gawadar then Pasni drtd Pasni to Yemer, Tanzania and Eu-rope and the accused Rehmatullah during th'e course of investigation admitted that the actual owner of such recovered charas was Abu Bakar @ Dashti, r/o New Towrl CCT Colony, Gawadar and such recovered charas was sent to smuggler Mir Khan r/o Defencc, Karachi by the absconding a.cuscd Arif Khan r/o Ring Road, Peshawar through his different agents and Mir Khan and his manager AsiI dire.tcd the accused Rehmatullah that such charas including fruck be takei lrom the special agent of A-rif from I'eepri, District Malir artd then it was to be taken to Cawadar and then Pasni and accused Rehmatullah reached at Pecpri and obtained 6uch truck from an unlmown Pathan againgt huge remuneration.

3.Alter usual investigations charge was framed agairat the accused to which he denied atl the allegations leveled against him and claihed triaI.

4.The prosecution to Prove its case examined 06 PW's who exhibited variotrs docurtenE and other items in suPPort of the Prose(ution case whcreafter the pro6ccution closed its sidq. The aPPellant .ccorded his statement utuler scatlon 342 C!.PC wherein he denied all the allegahons and claimed that he has been Ialsely imPlicated by the ANF Police- He did not give evidence on ()ath or calt an-v DW in suPPort of his dcfence case.

5.Leamed Judge of the trial court after hearing the leamed counsel {or the appellant and assessment of evidence available on record, vide judgment dated 29.05.2019, convict€d and sentenced the aPPellant as stated above, hen(e this appeal has been filed by the aPPeltant against his conviction,

6.The lacts of the case aB well a9 evidence Produced Lrefore the trial court find an elaborate mention in the imPugned iudgment, therefo'e, the same arc not lePrduced here so as to avoid duplication and unnecessary !epetition.

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7.Learned counsel for the appellant has contended that the appellant is complctely i.nnocent and has b€en falsely implicated in this case by the ANF police; that he was not the driver of the truck and was not present when any lecovery of naraotics was made from the truck; that there are material contradictioN in the evidence of the PW's which rcnderc such evidcnce uiueliable; that safe custody oI the narcotic had not bcen proven from the time when it was allegedly rccovered and s€nt Ior chemical exar[ilation; that no privatc rnashi$ had been associated with the case and tftat for any or all the above reasons the appellant 6hould be acquitted of the charge by extending him the benefit of the doubt. ln the altemative he submitted that since the appcllant was a Itst time offender and a Poor Ferson his sentcnce should be rcduced t,, time aircady served in jarl instead o( life imprisorunent In suPPort ol his contentions he Placed reliance or the cases of Khuda Dakhoh v The State (2015 SCMR 735) and Ameer zeb v The slate (PLD 2012 SC 380).

8.On the other hand Special Prosecutot ANF for the State has full)' supported the impugned judgment. In Particular he has contended that the appellant was caught led handed on the sPot with the narcotics in the truck which werc recovered on hjs pointation in hidden cavities near the fuel tank; that safe custody had been Proved; that all the Prosecution $.itnesses were reliable and trust worthy and tsuPPorted the Prosecuttnr case and that there wele no material contradictions in the Prosecution evidence and as such the appeat should be dismissed. In suPPort of his contentions he has placed rcliancc on the cases of State tfuouth Directo, ANF Peshawar v Muhammad Ramzan & Ots. (2019 SCMR 1295), State thtough Director ANF Pedhawa. v & Fakhat Zaman (2019 SCMR 1122), state tftrough Dlrector ANF Peshawat v & sohail Khen (2019 rcMR 1288), Murhtaq Ahmed V The State (2020 SCMR 474), Hu$nir Shah v The State (PLD 2020 SC 132).

9.We have heard the arguments of the learned counsel for the Parties, gone through the entire evidence which has been read out by the learnerl counsel for thP appellant, thc imPugned iudgment with their able.,

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assistance and have considered the relevant law including that cited at the

10.After out teassegsment o[ the evidencc we ale oI thc view that thc pros€flrtion has proved its case beyond a reasonable doubt against the appellant for the following reasonei

(a)That the IIR was r€gistered with promptitude giving no time for con(oction and the 5.151 statements of the PW's were recorded promptly which were not signilicantly improvcd upon by any PW at the time of giving evidence.

(b)That the plos€cution witnesses proceeded to the Pointed Place based on spy inJormation to check a Particular truck which was being driven by the named appellant which contained huge quantities of narcotics which truck was stoPPed at the Particular place wherc the named appellant was arre6ted whilst being in the particular truck as per spy injormation and from where the tecovery was made.

(c)That the afi.st alrd leaovery was made on the gpot and the appellant was .aught ted handed with the narcotl.s by the Police whosc evidence fully corrokrates each othcr in all rnaterial respectlt as well as tlle Pros€cutiorl case. It is it well settled by no$ that the evidence of a police witness G as reliable as any other witness provided that no enmity exists between them and the accused and in this case no enmity has lreen suggested against anv of the police PW's and as such the Police had no reason to falselY implicate the appellant in a lalse case Thus we believe the police cl,idcnce r^,hich is codoborative in all material rcspe(ts. In this respect reliance is placed on the case of Mu6taq Ahmed V The State (2020 SCMR 474)

Gl) That therc are no major contradictiolN in the evidence of tlt Pws and it is well s€ftled by norv that minor contradi(tions tr'hich do not effect thc materislity of the evidcncc can be ignored. In this respect rcliancc is Placed on Zakir Khan v state (1995 SCMR 1793)'

(c)Most signift(antly the narcotics were recovered ftom the tru(k which the appellant was driving alon€ with no othel Passcn8ers and the narcotics wete recovered on his Pointation from Becret sealed .avitieo neay'under the diesel lanl oI the truck which onlv he could have known about. The Euck was recovered along wiih its key and the narcotics. Ii this tcsPcct in the similar case of Huesitn shah (Supra) it was hcld as under with reEPect to the driver of the truck at P.134 Para i;

"Hussait Shah aVpellati 70as dtioittg tle rele ant ehicle ruhen il u'as intercePted afld fton n s4crct cavily of tlnt whicle n huge q a tily of tltrcolic subslnnce ltnd be!fi ftra,eftd nA subseqnently u reforl recrired ,' frot lle .l

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(lzrnical Exofiiner hacl declarei t]&t tc rccotEred substanct rvs Clutus. The prosecution uibtcs*s deposing nboul the alleged rccoLEry uerc public vn)snls rltu hail o oslensible renso lo irlsely inlPlicale thc sltitl dppellutll iu a ca* of lltis ruturc. Tlu said rtitrEsses lqtl twfu co sktent slqtefianls lully itcrilttiti,,.littg the oppellonf ii lhe a\cged olltnce. Nothing has been bntShl Io our notice u'hich Nuld possibly be usctl to doubl the oeracilv of lhe snid t'ilnesses. Both lhe courts fuIo.o hatl ufidertaken an er'hausti.c analysis of the eoidtnca @1ilahle on llr tcto and had lhen concufied itl tlei .fnchGiort uso ing g,titt of thp anid if'flhnt harins bec Ptot)?tl bcyond reasonfule dabt a d qmn ott ou'n indryendenl epaluiliofi of lle e.'iilpice te lrme not beea able to lnke a lie]j, of the nlottet dryrenl ltor tlal .oncunertl! lnken W tht courts beloto tistiais thP said oPpcllant" .

Likewise in the case of Nadir Khan V State (1998 SCMR 1899) it was held as undcr, "We harp go e riougll the atrdEtt@ on reco and ind ttrat the hid thc chnrge ol uhicle lor a long 'Patihoners ioumey sla/ling Ilout Pcsh oar awl lerninating af Karachi. Thty lul the .lnting |](Prrc/s olso. As b.i118 person inclmtge of ltu whiclc hr such i lonS journcy, ley tuust be saddlcd ttllh the necessdry kflorrledge willt regard to !h? ulticle a d ils co tenls. The ProbabiLities ot the ptesufiptions arc all dcperubnls on lhe circu,tslafies ofench casc and in llu prcse t clse lle cba.ntslancesfttll! establish tlrcir k,touleilSe atr.l duareness of lhe conter*s dnrl thplr erplanaliofi- shLlrtng tlE i\tbfin@ aclually stre gthLtls thal cottclusion tnther lltdn !'cnkrnint it".

(Q That in this .ase the aPpellant was the sole Person in the Lnr.k and was driving at the time when it was stoPPcd and the appellant himself pointed out the secret cavities where the narcotic was hidrlen and as such he had aatual knowledte that he was lransporting the nsrcotics.

(g)Undcr S.29 CNSA once the recovery has been Proven as in tll1s case the onus shifts to the accused to show his innoaence in that at tea6t he had no knowledge of the narcotics. The aPPellant has not been able to do so in thb case. In the case of Mehboob- Ur-Rehman V State (2010 MLD 481) it was held as under in this respect at P485 Para 14 t

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"Undet lh. prciisio s of se.tion 29 of IIE C.N.s, Acl one lhe rccorYry of co lrubands uns nuib lron a pitnte cft uhidt lrtas by llzn i co trol of lhe hoo aryllanls, lh. btttdcn to pxflntfl lle F'JIz-ssto n helhcr nclual or .onstrtrcliu on lhe appellnnts to t,r.s

disclutrge b t fitiLhft lhey lul,e IcLl any eribnff in delance nor hm,c apyared h disptool ol tlv proseculit:tn eti.lc .i un.ler sectioi 340(2), Cr,P,C, lhus lhe clarge loid upon lhetn has rcfiaiied urltcbuuetl".

(h)t hat ll'. Chemic.rl rcport was posilivc.

(i)The fact that a sample was taken for chemical analysis from each recovered packet oI nar!.otic, as in tiis case, which each tuined out to bc positive would render all the material in each rccovered packet as a l1arcotic. In this lespecl reliance is Placed on Amir Zeb's caee (Supra) which held as unde! at P.399 para 8;

" For the pltrposes ol clllrilt a d re @oal oI .anfusion it ts declared lhat ultrc sny narcolic subslane is allegedly ftcourcd hile co lairud in differeti pnckets, urappers ot co ldinerc of n ry kind or in the slnpe of separale akes, ,labs ot an! other india,idual a*l sepalale Fhystcal lotttt it is necessdry that a separate safiple is to be taken ftorn coery oeparute packet, uraryr or co ainer and fron acry sepanle cake, sbtb ot ollvr lonn fot clv cal analwis nn l iI thal is not done the oiL! lhit qulrltily or arcotic suhslance is lo be considered aidittst llu dccuseil pcrson lronr uhich n sa ple (ns taken afid fesled 'ilh a poriti& /esk/t." (toid added)

0)That it would be extlemely difficult to foist such a large amount oI charas being in total 1000 KGs on tlrc aPpellant. ln this rcspe.t reliancc is pla.ed on The State V Abdali Shah {2009

(k)That tlle recovered natcotics were sealed on the spot and kept in salc custody at the malkana from the time oI their recovery to the time when they were taken for (hemical analysis and no Buggcstion of tampering with the same has been made. The recovcred narcotics were kcpt in the malkana and then the next day taken for chemical exanlnation by PW 5 Mansheer Ahmed in sealed condition. Ir the supreme court case of Zahid and Riaz Ali V state dated 03-03-2020 (unreported) in .lail Appeal No.172 of 201t1 although this casc concerlred raPe since it concemed the sale custody of certain swalrs being sent to the chemical examiner we consider it5 Iindin8s t(, be €qually dpplirable to thc sale custody of nat.otics b€in8 sent to the c

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cltmical cxaminer which hcld irs under at para 5 in material Part;

" ne che icnl ewttti et's report produ.ed by tht lady doclor states lhat thc aeals of spedmens tefil lor cl,zfiical cxa ifiitiofi ueft receited inlact and il nns it cfu'mical efir iner 1alrc had brclcn opcfi the seals, tlErelore, the conlention of lhc petihorcrs' barncd cou,Istl regalding the safe ltansfiission <rl th. specirrvts is discotnted holh by this facl as tclL as W IIE .fact lhol no queshon vrc ptt tcgnrdin\ lonryeing of lhe wid seals,"

(l)That although no independent mashir was associated with thc affest and recovery of the appellant and narc(rtic 5.103 Cr.P.C is exclude(l for offenses falling under the Control of Narcoti( Substances Act 1997 bv virtue of Section 25 of that Act. In this rcspe.t reliance is placcd on th€ case of Muharnmad Hanif V The State (2003 !iCMR 1237).Even otherwise it was held i Shabbl! Hussain's case (2021 SCMR 198) that due to Public aPathy most citizens are not prepared to a.t as independent mashirs ir su.h like cases.Furthcrmore, in this cas€ it $'as night time and no body was available to be an independent mashir

q.,9 r.r.ll u,r- ev,rreu"ri oi ii[ uygeii",ri ,r!r! ncquriilj i.. !I rLu assistarnce to the appellant as only the aPPellant was caught red handed in the truck witlr the narcotics. The co-accused *'ere allegedly a part of ar intemational drug smu8gling ring which the appellant was also a part of but the pr(x€cution werc unable to bring sufficient evidcncc on recotd against the co-accused to ]ink them to th€ instant case where as the cas€ of the appellant is on an entirely dillerent footing.

(n)That in dealing with narcotics cases the coults are exPe.ted to adopt a dlhamic apploach and not acquit the accused on lcchnicalities. ln t}|is re6pect reliance is Placed on the case oI Ghualm Qadir V The State (PLD 2006 Sc 6:l) which held as under at para I P.66.

"We are o! agrcpable u,ith lhc rcitenliott ol UP leumeil coxn*l benlus? Iact le irins thdl "PopPy Flouers" 'ere bun,l ling on lhe raof of llE LEhirlz theftbrc. th2 tedtnicalihJ, lohidt is beinS Poittted ont W the leintd ,lns?l, ltorld nol he suffciefit to a.qril hint. lfl atulitio to it in such-like cases Coutts are suPposeil to disPose of the ,flatter u)ith dyfinnic oPProach, iflstead of ncquittin( the dr g ?ailille's ofi technicalitics, as it has bea, hekl in (1993 SCMR 785) ani (PLD 1996 SC 305").lbold aclded)

(o)That sin € the appellant has been sentcnced .ofiectlY in accorda^ce with the guidelines s€t clowfl in Chulam Murtaza's

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cas€ (2009 PLD Inhorc 362) and the amount of nalcohc rccoveted was huge we see no gPecial features which might warrant a reductio; in sentence for the aacuscd esPecially in light of the Supremc Court cases of State thlough Dire.lor ANF Peshawat v Muharnmad Ramzan & Or3. (2019 StMR.1295), State ttuough Dire.tor ANF Peahawar V & Fakhar Zanran (2019 SCMR 1122), State lhrouth Dire.tor AN! Perhawar V & Sohail Khan which have orade it clea! that if narcotias weighing over 10}cg's are rc.overed, as in this case, the mandatory sentence is one of liJe ilDprisoruncnt.

(p)No doubt it i5 for the Prosecution to Prove its casc against the icc,rsed u"y"".l a reasonable doubt blrt we have alslr 'onsidered thc defensecase which is one of falsc implication simPliciter which we disbelieve in the face oI reliable, uust worthy and conJidence inspiring prosecution evidence csPecially as no witness had any reason to falsely imPlicate the aPPcllant.

11.'l hus, for the teasons rnentiond above, we find that lhe proceortion has proved its case beyond a rcaEonable doubt against the appellant and the imPugncd judgment is upheld and the aPpeal is dismisscd.

12.Tlle appeal is disposed on in the abovc tcrms.

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JUDGE

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