QASIM KHAN S/O FEROZ KHAN (Appellant) VS THE STATE (Respondent)

N a.yt-*\-ir.J C.o{. C-^.'i.1.*-,n UfLil

9 Qo

IN THE HIGH COU RT OF SIN DH, KARACHI

Present:

Mr. lustice Mohammad Kaim Khan Agha ! lustice Mrs. Kausar Sultana Hussain'

CRIMINAL APPEAL NO'417 OFzWO

Appellant Qasim Khan s/o Feroz Khan through Mr. Abdul lalil Marwat, Advocate Respondent The State through Mr' Abrar Ali Khichi, Addl. Prosecutor General' Date of Hearing 11,.1t.2020

Date of Announcement 13.77.2020

IU D GMENT

son of MOHAMMAD KARIM KH ANA GHA, Ir The a ppellant Qasim Khan passed by Ist Ireroz Khan has assailed the impugned judgment dated 06.10.2020 Additional sessions Jud,ge / Model Criminal Trial Court (MCTC-l)/special arising out of Court (CNS) Karachi Central in a Special Case No'108 of 2020 '1997 registered at f€ Super Market CrirneNo.39 of 2O2O u/s.6,9(b) of CNS Act, Karachi whereby the appellant was conv icted rt/ s'265-H (ii) Cr'P'C' and sentencerl to undergo Rigorous Imprisonment for one year and three months (01 of payment of year antl 03 months) ancl to pay a fine of Rs'9,000/- and in defautt 15 days' fine he has to further unc.lergo Simple Imprisonment for 03 months that the

2.The brief facts of the prosecution case as Per the FIR are accused complainant ASI Ali Rizwan of PS Super Market Karachi has arrested weighing 300 grams and cash Qasim Khan and recovered four pieces of Charas amount Rs.1400/- from Kachra Kundi opposite llyas Goth' C-1 Area'

I Liaquatabad, Karachi on 05'02.2020 at 0200 hours, under memo and lodged such

FIR u/s.6,9(b) CNS Act, 1997.

a formal

3.After usual investigation conducted by the Investigating Officer charge was framed against the accused to which he pleaded not guilty and

claimed trial of the case

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4.ln order to prove its case the prosecution examined 04 prosecution thereafter the witnesses and exhibited numerous documents and other items and was recorded sitle of the prosecution was closed. The statement of the accused u/s.342Cr.P.C.inwhichhedeniedalltheallegationsleveledagainsthim'He clic1 not examine himself on oath or call any witness in support of his defense

CASC

Learned 1s Adtlitional Sessions Judge/ (MCTC-1)/Special Court

(C'N'S')

assessment of Karachi Central after hearing the learned counsel for the parties and evidence available on record, vide judgment datecl 06.10.2020 convicted and sentenced

the appellant as stated above, hence this appeal has been filed by the appellant against

his conviction

6.Thefactsofthecaseaswellasevidenceproducedbeforethetrialcourt by the trial find an elaborate mention in the juclgment dated 06'10'2020 passed as to avoid \r court and, therefore, the same may not be reproduced here so duplication and unnecessary repetition.

ma;or 7, Learned counsel for the appellant has contended that there are the memo of contradictions in the evidence of the PW's especially concerning 4 pieces of charas arrest anti recovery especially as the timings did not tie in, that were produced' were recovered however at trial only 3 pieces ancl broken pieces as the that the weighing of the narcotics had not been carried out properly narcotics had been weighed with the shopper from which they were allegedly be acquitted recovered; that it was a case of remancl or else the appellant should by extending to him the benefit of the doubt'

8.On the other hand learned APG has fully supported the impugned had proved its case against the iudgment. He contentled that the prosecution that the appellant beyond a reasonable doubt and had in particular contended I was made' appellant was arrested on the spot when the recovery of the narcotics that the chemical rePort was positive and that there are only minor and thus the contradictions in the case of the prosecution which can be ignored placed reliance on appeal should be dismissed. ln support of his contentions' he MustaqAhmedVState(2020SCMR474)andShaziaBibiVstate(2020SCMR

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{ 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 appellant, the irnpugnecl judgment with their able assistance and have considered the relevant \ law including that cited at the bar.

10.At the outset we woull like to make it clear that there is no legal iustification for the remanrl of this case back to the trial court for re hearing which submission we find to be without merit.

11.After our reassessment of the evidence we find that the proseculion has proved its case beyontl a reasonable doubt against the appellant for ttre following leasons:-

(a)The FIR was registered with promptitude giving no time for concoction and the 5.161 statements were recorded promptly which were not significantly improved upon by any PW at the \ time of giving eviJence. The complainant and the IO were also separate police officers with no conflict of interest.

(b)That the arrest and recovery was made on the spot and the appetlant was caught red handed with the narcotics by the police whose evidence fulty corroborates each other in all material respects as well as the prosecution case. It is well settled by now thai the eviclence of a police witness is as reliable as any other wibress 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 implicaie the appellant in a false case. Thus we believe the police which is corroborative in all material respects' Reliance "ri,lu.t " rn this respect is placed on the case of Mushtaq Ahmed (supra) where it was hetcl by the supreme court in material part as under at para 3;

" Prosecution case is hinged upon the statenvnts of Aantrr Masood, TSI (PW-z) and Ahid Hussnin, 336-C (PW-3); hetng officwls of ttrc Republic, they do not seem to hntte an axe to'grind against tlu rytitioner, intercepted at a public place duing routirrc search. Contraband, considernble in charge, ELantity, cannot he possibty foisted to fabicatc a fale tlrnt too, toithout anrl apparent reann; uhile furnishing I ez,idtnce, botlt tlu trtitnesy-s remained tfuougltout consistent and confdence inspiring nnd as such can he relied upon toithout a demur."

(c)That there are no major contradictions in the evidence of the PW's ar-rd exhibits aud it is well settled by now that minor contra,lictions which rlo not effect the materiality of the evidence can be ignored. In this resPect reliance is placed on Zakir Khan V State (1995 SCMR 1793).

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(d)That all the relevant police entries -have been exhibited it .traing those relating to tleparture and safe custody of the narcotic.

were

(e)That the evidence of the PW's reveals that the narcotics weighed on the spot with electronic scaies and there is no urii"r,." to suggeit that they were weighed along with the shopper.

(f)It is correct that during the recovery and weighing 4 pieces.of .huru, *ur" founcl and ihut ut t,iul i pieces and some smaller broken pieces were produced however PW 1 Ali Rizwan has one explainei in his evidence that this occurred because in effect of the 4 pieces broke into smaller pieces' His- evidence in this respect is corroborated by the report o( the chemical examiner which reveals that he receive'l 4 pieces of charas for chemical into examination as such one of the pieces must have broken examiner smaller pieces while being returnecl from the chemical in its cloth.

kept in

(g)The narcotics were sealecl at the time of recovery ancl the malkhana until PW 4 Karim Dad took the narcotics to the kept in chemical examiner the next <lay as such the narcotics were safe custody and there was no clelay in sending them to the chemical examiner. Even no suggesti'on of tampering with the narcotics was made by the appellant during cross examination'

(h)The chemical report proved to be positive and all relevant protocols were followed'

(i)A CIfO has been exhibiterl which shows that the appellant-had appellant been tried for a similar offense under CNSA and the produced absolutely no evidence to caste any doubt on the prosecution case excePt for a bare denial of the offense' For falsely implicated by Lrurr,pl", he did not cliim that he had been did not give the pollce because he had any enmity- with them' he eviie.tce on oath, he rlid not call utty bW h support of his defense case.

CNSA 1997 once the recovery has OFurthermore, under Section 29 his iu"., p.oru., as ilr this case the onus shifts to the accused to show narcotics' The innocence in that at least he had no knowledge of the evidence shows appellant has not been able to do so in this case as the and as.such that the narcotics were recovered from him on the spot he was caught red handed and arrested on the spot along with the narcotics which were recovered from him'

I (k) That although no inclependent ma-sh1 was. associated with the *r"rt una r".oiury of theappellant this is not surprising beca tse the arrest and recovery was made in the early hours of the

morning when people were not likely to be about and according to PW i Ali Rizwan "no one came near"' Even otherwise of Cr.P.C is excluded for offenses falling under the Control by virtue oi S"ttio" 25 of that Act' In Narcotic Substances Act of Muhammad Hanif V this respect reliance is placed ot' th" "ut" The state (2003 scMR 1234.

(1)That in dealing with narcotics cases the courts are supposed to adopt a dynamlc approach and not acquit the accused on

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techntcahhes. In this respect rehance rs placed on Ghualm Qadir V The State (PLD 2006 SC Ot 1 *t i.n held as under at para 8 P 66' "We are not agreeable tuith tfu contentnn of tlrc learned counsel becaux fact ,irrorn, ttnt "Poppy Floue,rs" yere t'ound lyrng on tlrc rni of tlu ttehrcle tluret'ore, tle teclmrcality' tuluclt is hemg ! suffcrcnt to pomtei iut b'r1 tlu learnei counsel, toould not be 'ncryut lunr. Ii addition to it in such-Iike cases Courts are supposed to dispose of the mattet utith ilynamic apptoach' insiead of acquitting' the drug paildlers on. technicalities' as it has been held i"n (1,g% S'MR 785) and QLD 1996 SC 305"). (bo1d added)

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(m)No doubt it is for the prosecution to Prove lts case against accuse,l beyond , ."uro.rubl" doubt but we have also considered was the clefense case whrch in essence as per his 5'342 statement appellant did not gtve iust a basic plea of false implicarion' The Lvi,.lence on oath and did n'ot call any wltness in support of his defensecasesandasdiscussedabovethepolicehadnoenmity with him and had no reason to imphcate him in a false case and as such we drsbelieve the defense of the appellant' has proved

72.Thus, for the reasons mentroned above, we frnd *rat the prosecution \ impugned iudgment is its case beyond a reasonable tloubt against the appellant and the upheld and the appeal is dismrssed.

l3 'Ihe appeal rs disposer'l of in the above terms w 6lt/"o?p \ 10yo

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