SYED NAWAZ S/O ZIARAT GUL (Appellant) VS THE STATE (Respondent)

Sis

IN THE HIGH COURT OF SIND H, KARACHI

Preseflt:

Mr. lustice Mohamuail Kaim Khan Agha Mt fustice Arshail Hussain Khan, Criminal Appeal No.525 of 2021.

Appellant: Syed Nawaz S/o. Ziarat Gul through Mr. Muhammad Akbar Khan, Advocate.

Respondent: The State through Mr, Habib Ahmed.

Special Prosecutor ANF.

Date of hearing: 21.11.2022.

Date of Announcement: 28,77.2022.

IUDGMENT

MOHAMMAD KARIM KHAN AGHA, Ir ThC A ppellant Syed Nawaz S/o. Ziarat Gr:J has preferred this appeal against the judgment dated 23.08.2021 passed by the Special Court No.1 (Control of Narcotic Substances) Karachi in Special Case No.97 of 2076 aising out of Crime No.D0207004 ot2076 U/s.6/9, 1a/15(c) of Control of Narcotic Substance Act,'1997 registered at P.S. ANF-I Karachi whereby the appellant was convicted and sentenced to R.l. for Life with fine of Rs.100,000/-. In failure to pay the fine he was ordered to undergo S.l. for one year more. Benefit of section 382-8 Cr.P.C. was also extended to the appellant.

2.The facts of the prosecution case as set up in the FIR are that on 78.02.2076 at 1720 hours. SI Ali Muhammad of I,S ANF Gulshan-e-Iqbal, Karachi lodged FIR stating therein that he received spy tip through high ups that provincial narcotic smugglers namely Raia son of not known resident of Peshawar and Papu son of not known resident of Kati Pahari, Orangi Town, Karachi tfuough their special agent intended to deliver huge quantity of charas through motorcycle bearing registration No.DGN-605 to their special customer near Dil Passand Sweets North Nazimabad Karachi and on immediate action recovery of contraband and arrest of culprits would be possible. Upon such situation, on the direction of high ups he prepared a raiding party comprising of himself, ASI Rashid Ali, PC Liaquat, PC Abdul Hafeez, PC Muhammad

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Qasim, LNK Abbas, Sepoy Saeed, Sepoy Waris and other ANF staff under supervision of incharge of P.S. AD Muhammad Faisal duly armed with official weapons on govemment vehicles along with driver and special inlormer vide entry No.5 at about 1630 hours left police station and at about 120 hours, they reached near Dil Passand Sweetg North Nazimabad Karachi and started secret surveillance. At about 1720 hours they saw one person coming on black colour motorcycle towards Dil Passand and informer pointed the said person to be required hence they stopped and apprehended him. On inquiry, apprehended accused disclosed his name as Zatran son of Mubarak Shah and secured two foil pack multi colour packet wrapped in solution tape from fold of his shalwar and handed over the same to him. He cut the said packets and found charas in shape of slabs. On quantification the weight of every packet become 1 kilogram and accumulated weight of both packets of charas became 2 kilograms. During spot inquiry apprehended culprit disclosed that another special agent of Raia and Papu while concealing huge quantity of charas in Rickshaw is coming at same place for supplying contraband to special customer. At about 1800 hours they saw one rickshaw was coming towards Dil Passant Sweets and arrested accused pointed said rickshaw to be the same, who stopped and on inquiry apprehended accused disclosed his name as Syed Muhammad Nawaz son of Ziarat Gul. After some resistance he disclosed that charas was lying inside back seat of rickshaw and inside speakers and then he himself took out 35 multi colour foil pack packets from inside the back seat of rickshaw and 10 multi colour foil pack packets from inside the speakers and handed over the same to the complainant. He opened 45 foil pack packets and found charas in shape of slabs. On quantification the weight of 45 foil pack packets become one kilogram each and accumulated weight of 45 foil pack packets became 45 kilograms. During personal search of both accused seizing officer recovered their belongings as per mashirnama. After completion of entire formalities at spot they brought the arrested accused, case ProPerty along with rickshaw at police station where instant FIR was lodged against them.

3.After completion of investigation I.O. submitted charge sheet against the arrested appellant accused Syed Nawaz to which he pleaded not guilty and claimed trial.

4.The prosecution in order to prove its case examined 05 witnesses and exhibited various documents and other items. The accused in his 5.342 Cr.PC

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statement claimed false implication however he did not give evidence on oath or call any DW in support of his defence case.

5.After hearing the parties and appreciating the evidence on record the trial court convicted the appellant and sentenced him as set out earlier in this iudgment, hence the appellant has filed this appeal against his conviction. At this stage it is worth mentioning that co-accused Zafran was also convicted albeit sentenced to a lesser sentence based on the amount of recovery being much lesser than that from the appellant. He has not filed any appeal against conviction so far as we are awate. The other co-accused Saifur Rehman was acquitted of the charge and no appeal against his acquittal has been filed by the ANF so far as we are aware.

6.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 23.08.2021 passed by the trial court and, therefore. the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellant has contended that the appellant is completely innocent and has been falsely implicated in this case by the ANF; that he was picked up from his house prior to the incident afld that the narcotics were foisted on him; that a ioint mashimama has no sanctity in the eyes of the law; that the rickshaw he was allegedly driving was not produced;

that in any event there was no evidence to link him to the rickshaw; that 5.103 Cr.PC was not complied with and as such for any or all of the above reasons the appellant be acquitted from the charge by extending him the benefit of the doubt.

8.On the other hand Special Prosecutor ANF appearing on behalf of the State has fully supported the impugned judgment. He has contended that the accused was arrested on the spot where a huge quantity of narcotics were recovered from the rickshaw which he was driving which were kept in safe custody and which lead to a positive chemical rePort and as such the prosecution had ptoved its case against the accused beyond a reasonable doubt and as such the appeal should be dismissed, He has placed reliance 0n the cases of Raja Muhammad Nadeem v. The State and another (PLD 2020 Supreme Court 282), Akbar v. The State (2017 YLR Note 27l) and The Staty'ANF v. Muhammad Arshad (2017 SCMR 283).

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9.We have heard the arguments of the leamed counsel for the parties, gone through the entire evidence which has been read out by the leamed counsel for the appellant. the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar. We have excluded the evidence of PW 2 Muhammed Qasim as he died before he was able to be cross examined as per record.

10.After our reassessment of the evidence we find 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 CI.PC statements were recorded promptly which were not significantly improved upon by any PW at the time of giving evidence. The complainant and the IO were also separate police officers so there was no conflict of interest.

(b)That the arrest and recovery was made on the spot and the appellant was caught red handed with the narcotics in the rickshaw which he was driving by the police whose evidence fully corroborates each other in all material respects as well as the prosecution case, There evidence was not dented despite a lengthy cross examination, It is well settled by now that the evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused and 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 police evidence which is corroborative in all material resPects. Reliance in this respect is placed on the case of Mushtaq Ahmad v The State (2020 SCMR 474) where it was held by the Supreme Court in mate al Part as under at para 3;

"Prosecution cax is hinged upon the statcments of Aamir Masud, TSI (PW-2) and Abid Hussain, 336-C (PW-3); being offcials of the Republic, they do not seem to haoe an axe to grind against the petitioner, intercepted at a public place duing routine search, Cnntraband, considerable in quanti$, cannot be possibly foisted to fabicate a fake charge, that too, uithout any apparent reason; while furnishing eoidence, both the uitnesses remaineil throughout consistent and confdenu inspiing and as such can be relied upon arilhoul d demur."

(c)That the accused was the driver of the rickshaw which was stopped and the narcotic was recovered from a secret

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place in the rear of the rickshaw and inside speakers at the back of the rickshaw which was pointed out by the accused which was secured and sealed on the spot. Ti.,u.u *".u no other passengers in the rickshaw which was recovered from the qc5uryd and as per the record of the court was inspected outside the court by the counsel for the appellant as well as the State. The appellant is further linked io the rickshaw by the warranty book which was recovered from inside the rickshaw and was in the name of the appellant. The acquitted co-accused was not arrested on the ipot and no recovery was made from him. He was implicated solely on the statement of a co-accused and as suih the appellant,s case is on a_completely different footing to his acquitted co- accused so he can not take advantage of his acquittal.

(d)Based on the particular facts and circumstances of the case where the appellant and his co-accused were arrested at the same place albeit 40 minutes after each other before the first memo of arrest and recovery had been completed there was no illegality in making a joint memo of arrest and recovery which will not vitiate the case against the appellant. In this respect reliance is placed on the case of Akbar (Supra) where it was held as under;

"8. With tegard to the strong objection o/ learneil counsel for the appellant oaet the preparation of joint memo of arrest and recooery of iliffercti incrifiirrating articles found at the spot that are punishabk unilet ilffirent penal lazos, it fiay be obseraed that witit g a ioint or a sepqtate fiefio has neaer been consiilered an absolute requiruaent of law to be follozoeil at e.uery coEt. Lau, zoottlil only require identi/ication of each item distinctiaelv anil independentlg in the memo oJ recooery to /end off any chance of aaguaness or confusion in the trial, It is the rule of conuenience faaouing the ptosecution to preseflt its case unambiguously before the Court ot at times to be used /or the benetit of the accuseil if the memo lacks the necessary details to recognize each inciminating article properly against the accuseil from whofi it is alleged to haoe been recoaeted.. Eten a sepnrate memo u,nnting in necessary particulars in respecl of a recooered nrticle cannot be construed. to hatte fntislud suffcient inciminnting euide nu uarrnnting conoiction of the accused. The issue, therefore, ifi the context ttould not be of unting a ioit t ot sepatate ffielno of aftest and recotery at thc spot it case o/ a joint rccotsery from either one ot ,nore than ofle accused, but is of the lequiremeflt oI law pefiaining to clear, explicit anil precise particulars relating to each incdminating article so that the cause of iustice coulil be set-oeil adeqtately to the satis/action o/ all concerneil, A joint mano regarding nt\re thafl one fuciminating atticles punishable under different and separate penal laus either rccooered /rom one acansed or ,flore than one arresteil simultaneouslv woulil be admissible in etidence and can be saJely retied tpon and it,

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tooulil not be fatal to the prosecution case, if it precisely tnerrtiot s the recooery ol each illegal article against tie specific accuseil from whom it is efrected expticitly. In support of our oieu, we rely upon the case o/ State through Adzsocate General, Sindh o. Basher and others (pLD 79b7 Supreme Court 408), The Honorable Supreme Court has obserteil in paragraph No. 77 as under-

"77, Refering to the /ourth submission ol Mr. Aqil that eoen the Msshiruama of recooery coulil not haoe been relied upon as it was a joint Mashirnama of recooery ol the anest as usell as recoaeries of the arms and ammunition, it may be stated that simpliciter the fact that there is a joint Mashirnama of recooeies of the incriminat rg artictes, ,nay not be fatal if the same iilentifies each of the rccoaery with the accused conceraeit zoith all releuant particulars but if such a ioit t Mashifiarna is tag e and canflot identifu with certainty the articles recoaered /rom a particulm accused, such a Mashiraama cannot be rclieil upon.',(bold added)

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(e)Even otherwise, in dealing with narcotics cases the courts are supposed to adopt a dynamic approach and not acquit the accused on technicalities. In this respect reliance is placed on the case of Ghualm eadir V The State (pLD 2006 SC 61) which held as under at para 8 p,66.

"We are not agreeablz with the antention of the learned counsel because fact rcmains lhat "poppy Flowers" were found lying on the roof of the oehicie therefore, the technicality, uhich is being pointed out by tlu learnzd counsel, would not be suffcient to acquit him. In aililltlon to it in such-like cases Courts are supposeil to ilispose of the mattet uith ilynamic apprcach insteail o/ acquitting the ilrug pailillers on techticalities, as it has bem helil in (7993 SCMR 785) anit (PLD 7996 SC 305"). (bold added)

(f)That there are no material contradictions in the evidence of the PW's and exhibits and it is well settled by now that minor conkadictions which do not effect the materiality of the evidence can be ignored. In this respect reliance is placed on Zakir Khan V State (1995 SCMR 1793).

(g)That most of the relevant police entries have been exhibited including those relating to departute and safe custody of the narcotic.

(h)The narcotics were sealed at the time of recovery and kept in the malkhana for which the person who recovered the narcotic was examined, the person who deposited the narcotics in the malkhana has been examined, the head of,

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the malkhana has been examined, the person who took the narcotic to the chemical examiner one day later has been examined and all the relevant malkhana entries have been exhibited and thus safe custody of the narcotic has been proven from the time it was recovered until the time it was sent to the chemical examiner. There was no delay in sending the narcotics for chemical examination as ihey were sent the next day. Even no suggestion of tampering with the narcotics was made by the appellant durinf crosl examination.

(i)The chemical report proved to be positive and all relevant protocols were followed.

0 That is extremely dilficult for such a large amount of narcotics to be foisted on the appellant which is not readily available with the police whilst on patrol. In this respeit reliance is placed on the cases of Muetaq Ahmed,s case (Supra) and The State V Abdali Shah (2009 SCMR 291).

(k)Being the driver of the rickshaw which was linked to the appellant through the warranty book recovered from it actual knowledge of the narcotics can be found especially as the appellant was able to point out where a huge imount of narcotics (45KG) was hidden in the rear of the rickshaw and in speakers whilst being the driver of the car. In this respect reliance is placed on the case of Nadir Khan V State (1998 SCMR 1899) where it was held as under, "We haae gone through the eoidence on record and fnd that tfu petitioners had. the charge of oehicle for a long journey starting lrom Peshaatar and. tenflinating at Karachi. W hnd the diaing licenczs also. As being petson incharge of the oehicle /or such a long joumey, they ,nust be saildled with the necessary knotoleilge uith regaril to the aehicle anil its contents. The probabilities or the presumptions are all ilepenilents on the chcut rstafices of each case and in the presmt case the ciratmstances fully establish their knowleilge anil awareness of the conterrts and their explanation shozoing the ignorunce actually strmgthens that conclusion rather than zoeake ngit". (bold added)

(l)Furthermore, under Section 29 CNSA 1997 once the recovery has been proven as in this case the onus shifts to the accused to show his innocence in that at least he had no knowledge of the narcotics. The appellant who was the driver of the vehicle has not been able to do so in tfus case as the evidence shows that the narcotica were recovered from a rickshaw which he was the driver and sole occupant after he pointed out to the police where they were hidden in the rickehaw and as such he was caught red handed and artested on the spot along with ihe narcotics which were recoveted from the rear seat and speakers of the rickshaw which he was driving and

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connected with. In this respect reliance is placed on the case of Mehboob-Ur-Rehman V State (2010 MLD 481) where it was held as under in this respect at p485 para 14 "Under tfu proaisions of section 29 ol the C.N.S. Act once thz recwery of mntrabands was made from a piaate car uhich uas by then in control of the tuo appellants, the burden to explain tlu possession whether acfual or constructiae utas on the appellants to ilischarge but neither thzy haoe teit any eaidence in defene nor haae appeared in disproof of tlu prosecution eoidence under section i40(2), Cr.P.C. thus thc charge laiil upon them has remained unrebutted" .

(m)That although no independent mashir was associated with the arrest and recovery of the appellant and the narcotic this is not surprising because people despite being asked. as in this case, are reluctant to be involved in cases concerning narcotic dealers. Even otherwise, 5.103 Cr.p.C is excluded for offenses falling under the Control of Narcotic Substances Act 1997 by virtue of Section 25 of that Act. In this respect reliance is placed on the case of Muhammad Hanif V The State (2003 SCMR 1237).

(n)No doubt it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defense case which in essence as per the appellants cross examination and 5.342 Cr.pC Statement was just a basic plea of false implication in that he had been picked up from his house and was falsely implicated in this case. He did not give evidence on oath and did not call any DW in support of this defence case. No body moved any application conceming his illegal removal from his home and subsequent detention and no enmity or ill will has been suggested to any police witness to suggest that they might have falsely implicated the appellant in this case and thus we (ind the defence case to be an afterthought and disbelieve the same in the face of trustworthy, reliable and confidence inspiring prosecution evidence.

11.Thus, for the reasons mentioned above. we find that the prosecution has proved its case beyond a reasonable doubt against the appellant, the impugned iudgment is upheld and the appeal is dismissed.

12.The appeal is disposed of in the above terms.

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