AMIL KHAN S/O SELA KHAN (Applicant) VS THE STATE (Respondent)

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(a)Judgment aPProvcd for reporling.

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iSt kc out whichcver is not applicable.

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(iiir Rerdcr must ask the Judge writilrg lhe Judgtncnt whetbcr tbc Ju<.lgnrent is approv,:d :or reporting.

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IN THE HIGH COURT OF SINDH AT KARACHI

tl> Cr. Revision No. ' '. 2_/20 l6

Amil Khan S/o Sela Khan Through Attorne-y Abdul Aziz S/o Abciul Wahab Muslim, adulr, Resident of Chakwal Shahuzai Post Oflice Mastoong District & Tehsil Mastoone ... .............. Applican t

VERSUS

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'l'he State Respondcnts

FIR 40l2O 13 U/S 9-C CNS Act 1997 P. S.ANF Clifton Karachi

cB_UltlNA L r(EV_I SI9!I UNp E ILS E AIIpIL 4O El 4! 9 er& c.

Reing aegrievt cl :rnd d jssatislled b-r, tlrr. ,Juclgrrt,nt dtrtccl 28-O7 20l5 passccl by tlrc Spi,ural ,J,.rclgr: II ('NS Court liarachi rvhereby the learlted CoLlrt conljsc:rtcd Mazda !linibr-rs Registratior-r No. Ptr-3328, It is rher-e.j',rre rcspci:tlitll-1 pr:rvccl on bchrrlf of thc { applicant thtrt this Honcrrrralrlc, Cout t lla\, Lc plcrrscrl to se 1 asiclc: thc irr-rpugncd jurlgrnenr to tltc cxtcnt of conliscation rrf Mazd:r \linibus Registrtrtiun PII 332E irrld .riso t() dir(,( t tlrt' trnil court to handover thc possession ot titt- I'chr,-'ii.\iazclit.

Certified copy of the impugned order is filed herewith and marked as Annexure ('A".

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HIGH COURT OF SINDH AT KATiACIII

Criminal Revision Application No.113 of 2016

Present:

Mr. Iustice Mohanunad Karim Klrcn Aslrrr Mr. Irtstirc Zulfiqar Ali Sstrgi.

Appellant Amil Khan s/o Sela Khan.

through Mr. Muhammad Akbar Awan, Advocate.

Respondent The State through lvlr. Halrib Ahrnetl, Specia) Prosecutor ANF.

Criminal f ail Appeal No.495 of 2017

Appellant Nazeer Ahmecl s/ o Muhamnraei Q.rsinr through Mr. Habib-ur-Rehman liska n i, Advocate.

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Respondent The State through Mr. Habib Ahmed, Special Prosecutor ANF.

Date of hearing: 07.0i1.2020.

Date of Announcement 17.04.2020.

JUDGN4EN'T

Mohammad Karim Khan Agha,h Accused Nazee.r Ahmed s/ o Muhammad Qasim was triecl by learned Judge, Spe'cial Cor.rrt-ll (Cl.N S.) Karachi in Special Case No.1002 of 2013 arising out of Crime No.40 of 20'13, t/s.9-C C.N.S. Act, 7997, registered at PS ANF-Clifton, Karachi.

After trial vide judgment dated 28.07.2076, the appellant nan.retl abovt, was convicted for oflence falling under Section 6 punishable under Sccti()n 9-C CNS Acl, 1997, and sentenced him to suffer Rigorous lnlpris()nment for twelve (12) years and six (6) months and also finc of 1ts.60,000/ - (Rupees sixty thousand only). ln case of tlefault in payment of firre he sliall suffer .further Rigorous lmprisonment for nine (9) months. llrt' berrefit ot Section 382-8 of Cr.P.C. was also given to the appellant.

2.Being aggrieved and dissatisfied by the judgment passed by learned Judge, Special Court-ll (C.N.S) Karachi, the aforesaicl appeal has been preferred by the appellant against his conviction.

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3.The brief facts of the prosecution case, are that an FIR was lodgecl against the accused by the complainant Inspector Muhammacl AIzal <xr 03.11,.2013, at about 1600 hours and he alleged tllere in that he receivecl spy information that a person namely Nazeer Ahmed was reaching at Karachi Hub Chowki after concealing Charas in the' Mirribus bt'arirrg registration No.PE-3328, therefore, he left his ['S alongwith ANF officials in accordance with Entry No.4 at about 1200 hours ancl reached at Yousuf Goth bus stop, Mawach 15 Hub River Roacl, Karachi at about 1300 hours and held Naka, and at about 1330 hours the above referreel Minibus tr'.rs seen and on the pointation of spy the said Minibus was stopper.l anel its driver apprehendecl. The passengers were asked to act as witness, but they excused due to fear of narcotic peddlers, therefore, PC Liaquat Ali and PC Muhammad Shahid were nominated as witnesses arlc1 ParL'ntage Y of the accused was enquired, who ciisclosed his name as Nazeer Ahrrrecl son of Muhammad Qasim, r/o Gali No.9, near Ghosia Masjitl, Akrarn Colony, Hub Chowki, Baluchistan and after some prevarication ht' produced a nylon sack to the complainant which was founcl t() c()ntain r('tl foil packets of multicolor.

4.Every packet was containing Charas and weight of each packer rvas one Kg, and total weight of the Charas was 10 Kgs and the Charas was sealed in the same nylon sack for the purpose of chemical analysis. Uporr further search one Nokia Mobile 103 along with sim ancl Rs.6290 was recovered from the accused. Memo of arrest and recovery r,vas prepareci at the spot with signatures of the witnesses. Thereafter the accused along with recovered contraband Charas and Minibus were brought at tho 15 where FIR was lodged ancl investigation was started bv Inspector Muhammad Afzal.

5.After completing the investigation he filed charge sheet against the accused and placed two persons namely Muhammati Saleenr s/ tr Muhammad Noor Khan r/o Hub Chowki permanent address l'asheen Baluchistan and Riasat s/o unknown r,/o Golimar Karachi as abscontlers with the request for proceedings under section 512 Cr.P.C, the proceedings under Section 512 Cr,P.C. were initiated agailrst thc absconders, who were declared as proclaimed of(eneiers.,

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6.Thereafter formal charge was framed and read over to the accusecl, to which he pleaded not guilty and claimed to be tried,

7.To prove its case the prosecution examined 02 prosecutior.t witnesses and exhibited numerous tlocuments ancl other itcms thereaftor the side of the prosecution was closecl, The statement t,f the accusctl was recorded u/s 342 Cr.P.C. in which he denieel all the. allegations lcvt'lt'd against him and pleaded to be innocent. He examined himself or.r oath antl called one defense witness in support of his ciefense case.

8.Learned Special Court-l[ (C.N.S.) Karachi after hearing the learnetl counsel for the parties and assessment of evidence available on recorr.i, vide judgment dated 28.07.20'16, convicted and sentenceci the appellant as stated above, hence this appeal has been filed by the appellant against his conviction.

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9.The facts of the case as well as evidence producetl beforc tho trial court find an elaborate mention in the jucigment dated 28.07.2016 passecl by the trial court and, therefore, the same may not be reproduceel here so as to avoid duplication and unnecessary repetition.

10.Learned counsel for the appellant has contended that he is completely innocent and has been falselv implicated in this case, tlrat tl.re narcotics belonged to one of the 25 passengers in the minibus ancl not himself, that there was no safe custody of the narcotics anli the complainant also acted as the IO and as such for arry of the above rc'asor.rs he should be acquitted by extending to him the benefit of the doulrt. ln support of his contentions he placed reliance on Abdul Khalique Shah V { State (SBLR Sincth 197), Kamran Shah V State (2019 SCMR 1217), Abdul Ghani V State (2019 SCMR 508), Ikramullah V State (2015 SCMR 1002) and Mst Razia Sultana V The State (2019 SCMR 1300)

11.Learned counsel in the Criminal Revisior-t application has sought the return of the minibus to him as according to hirn he is il.re larr'ful orvner

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12.On the other hand learned Special Prosecutor for: A N.F. has fullv supported the impugned judgment, He has contenr"led that [he aPP('ll.tn1 was the driver of the minibus from which the narcotics were recoveretl, that he was arrested on the spot with the narcotics which leati to a positive chemical report and that safe custo(ly of the narcotics hacl been proverr and as such his appeal should be dismissed. With regarel to Lhe crirnirral revision apPlication movecl by Amil Khan whereby he has claime,-l returtr of the mini bus in which the narcotics were being transportecl he has contended that the mini bus does not belong to him ancl as such ltis criminal revision application should also be dismissecl.

13.We have heard the arguments of the learnetl couusel fot' thr,' parties, gone tfuough the entire evidence which has been reacl out b1' thc appellant, the impugned iudgment with their able assistance and have considered the relevant law.

14.We would first like to note that the appeal is hopelessly time barrt'cl however since the law prefers matters to be decicled on merits rather thatr technicalities and according to the learned counsel for the aPPellant the appellant is a poor illiterate man in jail we have proceecled to rlecitle tht' case on merits.

15.After our reassessment of the evidence we find that lhc Prosccution has proved its case beyond a reasonable doubt against the aPpellallt t()r the following reasons:-

{ (a) The FIR was registered with PromPtitude giving no time for concoction and the S.161 statements tn'ere recorded promptly which were not significantll' improved upon by any PW at the time of giving evidence.

(b)That the arrest and recoverv was made on the sPot and the appellant was caught red handed with the narcotics by the police whose eviclence fulll- corroborates each other in all matcrial respects as well as the prosecution case. lt is well settlecl bv nou'that the evidence of a police witness is as reliable as anv other witness provided that no enmity exists betn'een them and the accused and in this case no enmitl'has

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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 thc unreported recent Supreme Court case of Mushtaq Ahmed V The State clated 09-01-2020 in Criminal Petition No.370 of 2019 where it was held in nrat!'r'i.rl part as under at para 3;

"Prosecution case is linged rrpotl tlv stntat L'ttts of Anmir Masood, TSI (PW-2) and Ahid Hussain,336-C (PW-3); heing officinls of llte Republic, tlwy do not seeru to hatu' rrrr r'llc lo grind ngainst the petitioner, intelcepted nt n public place during routine secrclt. Contnfunrul, considernble in quantity, cannot he possibly foisted to fabricate n fnke chnrge, tlmt too, ruithottt any appnrent refison; tohile ftrnishing euidence, both the toitnesses rerminerl throughoul consistent nnd confidence inspiring and as such can be relied upon u,ithout n Y demur."

(c)That the spy information about the minibus and its driver and its likely route which was pointed out by the spy informer fully corroborates the prosecution case since this is the minibus which the appellanl u'as driving which was stopped and the appellant n'as arrested in whilst proceeding along the informe'ci route and the narcotics discovered which was recovered along with the minibus.

(d)That there are no major contradictions in the evidence of the PW's and it is well settlecj by now that minor contradictions which clo not effect thc materiality of the evidence can be ignorecl. In this respect reliance is placed on Zakir Khan V State

(1995 SCMR 1793).

(e)Most significantly the narcotics rvere ti-'covereel from the minibus which was being driven by the I appellant and he handed the narcotics to the police when he was stopped and thus there is no doubt tlmt the acarsed had actual knowletlgc of the narcotics which were being transported. The' minibus was recovered along with thc narcotics. In this resl.,cct in the similar case of Nadir Khan V State (1998 SCIvIR 1899) it was helcl as untler,

"We haoe gone through tlrc et'ldence o record and find that tlw petitioners lnd tlu chtrge of uehicle for a long jounrcy stnrting front Peshatlnr arul terntinating nt Knrnchi. 1'hey had tlu driTing licenses also. As being person incharge of lhe rchicle t'or such n long JoItrtk V,) .v

they must be saddled :atitlt tlt ne.ess{try knoruledge u,ith regild to tlp t,elticle nnd its contents. The probnbilities or lltt' prtsttntptitttts are all dependents o tle circufi$tnnces o.f eaclt case an{l in the present t:ase tlY circLtn$tttttft's fully estabtish tlteir knoruledge nrtd mmreness o.f tle contents nnd tlrcir explnnnliott slowing tltt' ignorance rctunlhl strengthe ns llurt conclusittrt rather thnn wenkening it".

in this regard reliance is also placed on Hussain Shah and others V The State (PLD 2020 SC 132) which is similar to the facts and circumstances of this case,

Furthermore, Under Section 29 CNSA once the rccovc'rl has been proven as in this case the onus shifts to the accusctl trt show his innocence in that at least he had no knowleclge of tht' narcotics. The appellant has not been able to do so in this case.

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In the case of Mehboob-Ur-Rehman V State (2010 MLD.181) it was held as under in this respect at P485 Para 14 "Under the prot'isions ol section 29 o.f tlrc C.N.S. Acl once tfu recotery of contmbnnds u,as nntle .frott n priz'ate car uhich rcns by then in control of tlz ht'o appellants, the burden to explain tlta posst:ssiort rulrctlrcr nctual or construcliT,e wns on tlrc nppellnils to discharge but neither they lmre led nny et,idctrcc itt defence nor hnue appenred in disproof of llrc pros?.ltiolt epidence under section 340(2), Cr,P.C. tltus Ilrc dmrge laid upon tlrcnt lns rennined unrebutled" .

That the appellant's ciefense that whilst he was clriving one of his 25 passengers callecl the police because' thev suspected a bomb in a bag rt'hich turnecl out t() bt' 4 narcotics is in our view simpll,not beliovablt'. It certainl\' does not appeal to logic, r'eason or cornmon se'nse. Ilatl there been a grain of truth in his tlefense then rather thilIl making a phone call whilst the minibus r.'i'as in transit his passengers would simplv have'i..rl.l hjm to pull rrvt't so that they coultl get out of the minibus before the bon'rb explodecl. The fact of the matter is that according to the evidence the appellant has admitted being the driver of the van and the narcotics was found under his seat

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which he handed over to the police. He was thus catrght red handed with the narcotics

(f)That it would be extremely difficult to foist such a large amount of charas being in total l0 KC's .ls mentioned in Mustaq Ahmed's case (Supra) a n,"l The State V Abdali Shah (2009 SCMR 291).

(g)That there was no delay in sending the chenrical report for analysis which turned out to be positive.

(h)That the recovered narcotics lt'ere kePt in safe custody from the time of their recovery to the time when they were taken for chemical anall'sis ancl no suggestion of tampering with the same has even been made. The narcotics were sealed on the sPot, remained sealed in the malkhana befole beir.lg transported to the chemical examiner in a sealed condition as per the chemical report. In this resPect reliance is placed on the recent Supreme Court r.'ast' of Zahid and Riaz Ali V State dated 03-03-2020 (unreported) in Jail Appeal No.172 of 2018, Aithough this case concernecl rape since it concernecl tht' saft' custody of certain swabs being sent to the chenlical examiner we consider its fintlings to be eclually applicable to the safe custody of narcotics being scnt to the chemical examiuer which helcl as under at para 5 in material part;

"The chemical exarniner's report produced bry the lnly doctor states tlnt tlu senls of spetimens senl itr chemical examinntion u'?re receiued intnct nnd rt uns the clumicnl exaruirur tpho lmd broken open tlu scrrls, therefore, tlrc contention of the petitioners' lernteLl counsel regarding tlrc sat'e trnnsnissiot of tlr specimens is discounted both by this foct ns uttll ns bu tlrc fact tlnt no question urns put regnrditrg tuttpt'rittg of tle said senls."

(i)All relevant police entries were duly exhibitetl.

{ (j) That although no indepencient mashir was associated with the arrest and recoverv of the appellant it has come in evidence that no private person was willing to become an independent mashir at the time of arrest ancl recovery. EvL'n other\^'iso 5.103 Cr.P.C is excluded Ior ofienses falling under thc' Control of Narcotic Substances Act 1997 bv virtue of Section 25 of that Act. In this respect reliance is placecl on the case of Muhammad Hanif V The State (2003 scMR 1237).

(k)That there is no absolute legal bar on the cornplainant also being the IO. ln this respect reliance is placetl on Zafar V State (2008 scMR 12s4)

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(l)No doubt it is for the prosecution to prove its casc against the accused beyoncl a reasonable doubt but we have also considered the defense case w,hich lvt, disbelieve for the reasons we have alreatly cliscusseel above.

16.With regard to the criminal Revision application we note the evidence of PW 1 Muhammeci Afzal who states as under.

"During interrogation as per version ol the accusecl that he is in fact rlri'"'er of one Abciul Aziz son of Abdul Wahad who is otheru'ise olvner ttf the said vehicle as per version of the accuse,.l. I issued notice to said Abdul Aziz ds 160 Cr.PC who ioined the investigation and I recorded his statement ry's 161 Cr,PC on 30-12-13 who claimecl to be owner of the said seized vehicle as he purchased the vehicle from his previous owner namely Amil Khan." (bolcl acltlecl)

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"f7. It is notable at the time that of the offense Mr.Amil Khan tliLl rrot come forward to join the investigation or to claim ownership of the vehicle and his claim now seems to be an after though especiallv as there is evidence to show that the vehicle belongs to Abr{ul Aziz.

18.Thus, for the reasons mentioned above, we find that thc prosecution has proved its case beyond a reasonable eloubt against the appellant and the impugned judgment is upheld and the appeal is dismissed. We also dismiss the criminal revision application as being without merit

79.The appeal and revision application are riisposeel ol in tht, .rlrovt:

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