SYED SAMIULLAH S/O SYED ABDUL WAHEED (Appellant) VS THE STATE (Respondent)

t- J /^t 9

IN THE HIGH COURT OF SINDH AT KARACHI

Prcsent:

Mr.lustice Mohammad Karifi Khan AghQ Itt, Iltitirc Khfliit ll flT fiio

CRTMINAI- APPEAL NO.414 OF 2021

-Appcllant: Syed Samiultah son of Sycd Abdul Wadood thlough Mr. Salahud Din Khan CandaPur,

Respondcnt The State through Mr. Mohammad Iqbal Awan, Addl. Prosecutor Ceneral Sindh.

Date of hearingi 11.0?.2022

Date of armouncement 21.02.2A22

IU GMENT

Mohammad Karim Khan Agha, I.- APPellant syed Samiullah was convicted by the Iearned VIII Additional Distdct & Sessions Judge,zAddl' Model Crimiral Trial Court, 0/Vest) Kara.hi in Ses$ion Case No 295 of 2021 arising out of F.I.R. No.7/ of 20219 u/s.6/9-C. CNS Act 1997 of PS Dffk!, Karachi vide judgment dated 15 ff.2021 and was sentenced u/s' 6/9-C CNS AcL 1gg7 lo 05 years and 06 months R.l. and to Pay (ine Its-30,000/- and in default of palTncnt he shall fulther undergo S I of 06 months.

2.The blief facts of the prosecution case are that on 24 01 2021 PC Muhammad Saleern of t5 Docks was patrolling with a Police Party when on re.eipt of sPy inJormation he was inJormed that onc Petson ra'as coming in a car for suPPlying charas at MohaEmadi Colonl/ and on receipt oI such sPy injormation the police Party reachcd at Nala stop near l,akri TalI Mohanr[radi Coiofly Karachi and started searching veltcles' The police party at O12O hours stoPPed a car on the intimation of sPy inaormcl and asked the driver,lvho was the aPPcllant Syed Samiullah' to gel out of the car ald on sear-ching of the car hidden under the driver seat in a plastic shopper three Packets of claras were re'overed B'hi'h in total

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weighed 3020 8rarns. The appellant was arrested and taken to PS Docks where FIR was lodged against him under CNS Act, 1997'

3.AIter usual investiSations this cas€ was challaned and the appellant pleaded not Suilty to the charge and claimed trial'

4.In order to prove its cas€ the Plosecution examined Gl PW's whct 'lhe exhibited various documents and othel iterns in suPPort of its case appellant recorded his statement under section 342 Ci'PC wherein he denied all the allegations which had been made against him and 'laimed false implication. He did not 81ve evidenc€ on oath or call any DW in

support of his defence case.

5.AJter hearing the Partres and aPPreciating the evidence on tecord tl,e learned Judge oI the kial court convicted and sentenced the aPFllant as Eet-out eailier in this iudgmcnt. Hence the aPPellant has filed this

appeal against his conviction

6.The factt of the case as well as evidence produced before the Eial court {ind an elab<rrate mention in the imPugned iudgment' thetelorq the

unnecessary same are not rcPloduced hcrc so as to avoid duPlication and lePetilion.

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7.Learned counsel Ior the aPPellant submitted &at the aPPellant conpletelv innment and that the narcotica had been Joisted uPon him by was the police, that the vehicle ftom which the narcotics were recovered not produccd in court, that the cale custo'ly of the narcotics had not been

proven and as such bascd on any or of all the above factors the appcllant of his by extendin8 him the b€nefit of the doubt be a<quitted' In suPPort Mansha v contentions he has placed rcliance on the cases of Muh'mmad (2020 P Cr'L J the Slate (2018 SCMR 72), Muhammad Wali v The State 1,142), tkramullah v The State (2015 SCMR 1m2), saiid Khan v The state

(2021 YLR 296) and Bahar Begum v The State (2019 YLR 1585)

8.On the r)ther han<I, learned Additional Prosecutor Gcncral Sindh has fully supported the imPugned Judg cnt tn Particular he has

contcnde,l that the aPPellant was arrested on the sPo! that narcotic wa?

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recovered from the vehicle which he was drivin& that the PWs evidence r can be saJely relied uPon and sale custody oJ the nalcotic has been provcn which produced a positive chemical rePort and thus the appeal be dismissed. In suPPort of his contention he has Placed reliance on the cases of Ibrar lJllah v The State (m21 SCMR 128), Sabir Hus3ain v The Stat€ ( 21 SCMR 198), Mushtaq Ahmad v Thc state (2020 rMR 474)' Asmat Ali r The Stat€ (:020 ictviR 1000) anrl Abdul Wahab v Thc State (2019 scMR 2061).

9.we have heard the arguments of the leamed counsel for the parties' gone through the entte evidence which has been read out by the leamed .ounsel fo. the aPPellanL the imPugned iudgment with their able ossistance and have corisldercd the relevant law indudin8 that cited at the

bar.

10.After reassessmcnt oI thc evidence 1ve lind that the Pro6c(ution has proved its cdse aSairtst the aPPellant btlyold any reasonable doubt for thc IollowinS reasonsi-

(a)That the FIR was regjstered with PromPtitude Siving no time ioi concoction anl the sl61 statements oI tlrc I'w's were recorded uPon by any PW I,rornptly which wer€ not siSnificantly improvcd at the time of givinS evidence

(b)That the prosecutio[ witnesses Proceeded to the Pointed Place iased on spy inlormation to chcrk a particular car which was being tlrivcn bv tirr'appetlant which contrined narcotics which c $as stoppcd'at the pirticular placc whc.rc the apPellant wa! aEcstcd *rut'tt U"ir1g in itt" porticular car as per spy inJornration and lrorrr where the rccovcry was made.

(c)That the arlest and recovery was made on the bPot and the iipellant was taught red h.nded with the n cotlcs by the Police ,iliose erilence iully corroborates each othe! in all materiai respects as well as the prosecution case. It is it well settled by now ilui the eviLlence of a police witncss is ar reliable as any other witnass provided that no enmity exists bet*'een them and the accused and in this .ase no enmitv has been suggested against any of the police PW's and as such the Police had no reason to fals€ly imolicate the aopellanl in a fah,e case. thus we believe the Pollce .uid"n whi.li'i. corroborativc in all malerial resP€rts ln tii\ rcspect "leliance is Placed on the case of Mu6taq Aimed V The Srate (2020 tjCMR 474)

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(d)That there are no maior conkadictions in the cvidence of the iw's and it is *ell settled by now that minor .ontradictions which do not effect the materiality of the evidence can be ignored lfl this respect reliance is Placed on zaki! Khan v state (1995 SCMR 1793)'

(e)Most siSnilicantly the nalcotics were recovered from the car which the appellant was driving alone with no other passengers and the narcoiics wcre recovered hidden under the driverg s€at of the car. The cal was recovered along the narcotics as Pei mcmo of arrest and rctovery and the fact that it was not Produced in court based on the other evidence in this case and th€ Particular Iacts and circur$tances of this care we find to be inconBequential ln this rcspect in the similar case of Hu$aln Shah v The State (PLD 2020 SCi321 lt was treltt as under with resPect to the driver of the car at P.134 para 3;

"Hussain Shdt apyLlati Nas diting tle ftlsoo'\t'Jehicb uhin it,as inb;ceptad a lrcm a scret ca'ity al of tchick a huge quantity ol narcotic substancc h!1d been recotered atA sibsequently a revorl rcceiaed from lhc. Cfumical Enfiinet had dedoftd llut lhe recotered' s bslafice l,rls C)laros. '[hc pto*cution t)ifiesses y'Ptr/sittQ bout ttu lllcgcd rcrcDery ucrc Public *ru n!5 wlho h,.tl no ostt,tstule reasun lo lalselg implicate llt sa'd 'I'IE saii u.rln?sses had aDDcllat i,, a tL5( of lhis tnlutc.

mide onsisknt itatcnmts fitly incrutli alin| lh? avoellant ot tk atleRed ofknk Nolhin| hds been bfiu|hl f;'orr ltoti? r|luci coid yortibll be us?d lo doubl lh' N Lilv ol tli satd u'it,1Psvs. Both lhe coutls bclou hnd unfullkir an ctlut shte analysis of llz elide ce ooa abh ofi th? ftcori arxl l@d lhe concurred in lluir cotlchtsiot reeardfie cuill of lhe sad appella lwunrg bten proted dn a ih*tl, tlouht and upo our ou'n itdepu&nta ailuatrcn ol tlo eodcrut a'? ttal'? nol been able to hke vi4u of lhP'mnltet (ltfferent fro thal loficurPnlly tflken W tlg courls belliu' 1rsi-tl,s the said nPPdlanl" ' Likewi6e in the case of Nadir Khan V State (1998 scMR 1899) it was held as under, 'W? hauc eottc lhtoulh lhc eiil?llc? ott racoftl n d fnd that the ;htione,s lia n thorye of oehcle fot a long ioutn?1t starl'trg fron Peshau'ar nd terninah'ry al 't Amci. ThPv-hnt the drui 8 li,2ttd' cLlu As bcillg person inclnrit o[ thc rchicle hr srch a lor9 Jaun"y th"lJ 'must l,? sndilei :.lliLh lle n?cessary k,touledS' wlh ftoaft! lo th( lehrclc a .l tts lntPnls The yobabihtfus or tli prcsunptions are all d?pc tbnls on tly .ircumslattcrs ot,r,:lr rusi nnrt fi lht prcsc l La.c tlP t'itntmtlfln'eslltlly ;shbltsh ttAir l,nouledge and auareness of lhe .lt,i?nls nnd tlgir expla/,'tion shott'i 8 lhc iSnorance o.lualty strengthens that caflclrsio,l ralhtr thdn zr.€akantng i1".,

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(O That in this case the app€llant was the sole P€rson in thc car an.l wdr Jrivins at thc i;me when it was stoPPed and thc ,rr..,rtits werc riovererl from undemeath the dJiver's 5eat 'rn(l as such he lrad actual knowledge that he was ttansPorting the narcotics.

lct Unri:r S.29 CNSA once the lccovery tlns bcen Proven as in ifiis c,*" the onus shilts to the ac(u6€d to show his inno<ence in Lhat at least he had no knowledge o[ the natcotics The aPPellant has not heen ablc to ilo so in this aase ln the case of Mehboob- Ur-Rehman V State (20'10 MLD 481) it was hcld as under in this resPect at P485 Para 14

"Lhulet lhe Prcoisions of Yction 29 of tllE C N'S' Acl Lttrce tlu rccol,\rry of carhabands uos nade lron a of lh' t1t'o ltunte cor rdtici as W tq'fn in conttol n|/4r,cllant., lh? buttun to eryLrin the |tosxssio tliatl(.t acluirl or conslruchte uas on lle lryllsnls lo distharce but wilhfi lhell haoe bd s'ty euderut in dtfurue-nor hmc appearedin lisprwf ol the proxculon eiidenrr unde, xciiott 340(2), Ct P'C lhus th? clnrSe hid upo the l]l,,s re niail uttftbultxd"

ft) That the recovered narcotics were sealed on the spot an'l i"p, in tof" (ustudy at the rnalkana from lhe time of their reiovery to the time when they were taken for chemical analysis .r'" do.i later ln sealed condition as.orfirmed by the chemical ruport lnd no suggestion of tamPcring with the s'me.has bccrl nrade. The rec,,vii",l ,'or..rti were kcPt in Lhe malkana an'I then the next day taken for chemical examination by PW 3 Raja Gtun uffar in sealed condition. In the suPreme cout case of Zahtd and Riaz Ali V State (2020 SCMR 590) although this case qlstody oI certain concernetl rape 6ince it concemed the safe swabs teing s€nt to the chemical exardne! we consider its Iindings to fe equally aPplicatJle to the saJe custod)'of narcohcs being seDt to the chemical examiner which held as under at Para 5 in material Pan;

"Th?. chctfliul etAt titzr's reforl Produccd by tle lady tloctor sll,tes thal the seals oI specimens sent for cherntcal exarninalion were receioell inlnol anl it uns lhc cfumicil e$min2r 1!'ho tud btokcn oPcn lhe seals' ttwcforc, lh? @ntention ol lhz pthlion?c leanEd touisl repardinx th? .ale lrarmtssion of the q,eanens ii dixointed hath by this fnct a5 uEIl as by ie lact lhat flo question w$ P t regardiflS tafiWing of lle said seds "

(i)That t}le chemj.al repott was Positive and all thc required orotocols were carried oui. We Iind the tyPo of the datc as Z1d to i4,h of tanuary in the chemical rePort as bein8 inconsequentiali

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{il That althouch no indcpcndent rnashir was asso<iated with tio l-rrc:r an,l ,.corlcri ol thc appellant and narcolic S 101 Cr'P'C i' excluded for offenscs falling ualder the Control ol Narcotic Sulrstances Act 1997 by vi-rtuc oI Scction 25 of that A't ln this resDect relian(e ic placed on the case of Muhamm'd Hanif V The Staie (200j SCUR tZ)4.tren otherwis€ it was hcld in Shabbir llussain'e caee (2021 SCMR 198) that due to Public aPathy most such like citizens are not Prepared to act at indePcndent md-shirs in cases. Furthermore, in this case it was niSht time and no bodl was available to act as an indePendcnt fiashir to rk) That in dedlins wrth narcotics cases the courts are exPecleLj lioot a avno,t ii approach and not acquit t'he accuscd lhe on-

rcctinic.rlitics. ln this iespect relian'e is Placed on case ol Ghualm Qadir V The slal GLD 2006 Sc 61) which held as under at para 8 P.66.

"We ore nol ag/eeiblc utlh th| conlention of llD leanud counsei becaffie t'acl re ai'rs at "PoPPy flouers' trcre lound lvtn1 o lhe r@f ol l]E l?hit:le lhPwforc' tle ietn,! itity nhith is betng Ponled ot 6y rhe lcanttd tou'tsrl u'ould not be sufrcitttl to atluil hn t oddllio to it in such'llkc cascs Cottrts aft suPlost'l to i;s\ose of thc r',attet uith dynamic apptoacl+ insteitl of oc.tutttlflg tha Arug paddlers o technicalitiQs' as'it hai been hcid in fi993 SCMR TA and (PLD 1996 5C 305") (bold added)

ll) No doubt it is for the prosctution trr Prove its case ngairut lhc l..r."d bevon.l , ..".ottibl" doubt but we hdve also considered ii*J.f"*J."t" *r';.h ,s one of talse imPlicniion simPliciter-shi(h we rlisbeheve in thc ldce of reliable, trust worthy End (onllclencc ,*pi.i"g p.*".rti.. eviderue esPeciallv as no witne5s had anv reason to fals€ly imPli.ate the aPPellant'

11.Thus, Jor the reasons mentioned above' we find that the against the prosertltion has proved its case beyond a reasonable doubt appellant and the imPugned iudgment is upheld and the aPPeal is dismissed.

72.'Ihe appeal is disPo6€d of in the above tclms I E.tt L2