Mr. Justice Munib Ahmed Khan
Date of Judgment . 0 3. 2 0 0 6 .
Appellants: Mohammad Naeem and Faraz Khan through Mr. Mohammad Ashraf Kazi, Advocate.
Respondent : The State, through Mr. Mohammad Sarwar Khan, Additional Advocate General.
J U D G M E N T
Munib Ahmed Khan. J,, This appeal is directed against the Judgment dated 07.04.2005, passed by the learned Special Court-I (CNS), Karachi in Special Case No. 322 of 2003, whereby the appellants have been convicted under Section 9(c) of the said Act and have been sentenced to suffer RI for 7 years and to pay fine of Rs.50,000/- each and in default to further undergo RI for 6 months. Benefit of Section 382-B has also been awarded to them.
Brief facts of the case, as per FIR, are that on 26.07.2003 at 5.00 p.m. Complainant Nazeer Ahmed, Assistant Manager Security, Bin Qasim came at P.S. along with other security staff with rickshaw bearing Registration No. D-02770 and accused Mohammad Naeem and Faraz Khan and produced them with three packets containing Charas lying in blue colour thelli. The Security staff of Port Bind Qasim disclosed that the Charas wrapped in khaki colour plastic weighing at 2.350 kilograms was recovered from accused Mohammad Naeem, while accused Faraz Khan was in possession of Charas weighing 1.150 kilograms. Police arrested both the above named accused and took out one piece of Charas from each packet as samples for chemical examination and put in khaki envelope and sealed the same, whereas rest of the Charas was also sealed separately. Such mashirnama was prepared in presence of Complainant Nazeer Ahmed, SIP Ayaz Khan, Security Guard Habibullah and one Ameer Ali. Thereafter, on the basis of aforesaid recovery, FIR was lodged against both the accused.
Charge was framed against both the accused on 09.01.2004, to which they pleaded not guilty.
The learned trial court has settled following points for consideration.
1. Whether on 26.07.2003 at about 1510 hours present accused were detained at main gate of Port Qasim by Nazir Ahmed, Assistant Manager Security and others and on their personal search, Charas weighing at 1.150 kgs was recovered from accused Faraz Khan while charas weighing at 2.350 kgs was secured from the possession of accused Mohammad Naeem when they had come there in a Rickshaw bearing No. d-02770 which was driven by accused Mohammad Naeem?
2. If the finding on point No.1 is in affirmative, what punishment awarded to the accused will be sufficient to meet the ends of justice?
3. What should the order be?
The prosecution, to support the Charge, has examined four witnesses, namely, PW-1 Mir Ali, Security Guard, Port Qasim, PW–2 Complainant Nazir Ahmed, Assistant Manager, Port Qasim, Security Unit, PW-3 ASI Sharafat Ali and PW-4 Inspector Amjad.
On the other hand accused have examined themselves under Section 342 Cr.P.C. and have denied the recovery of Charas from their possession and have submitted that they were detained on 25.07.2003 by the complainant and others while they were taking Gurr etc to the house of their relative, namely, Sher Ali residing at Steel Town, Karachi and no narcotic etc was recovered from their possession. The learned trial Court held that point No.1 is proved against the accused and awarded punishment to them.
Learned counsel for the Appellant has challenged the conviction on the ground that there is material contradiction in the evidence of prosecution witnesses, the learned trial court has not considered the aspect of creditability of prosecution witnesses Nos. 1 and 2 i.e. Ameer Ali and Nazeer Ahmed. He has further stated that PW Ameer Ali was not present at the site but at Telephone Exchange, Port Qasim and came late at the place of incident and that he has admitted in his cross-examination that he has not signed mashirnama. He has further contended that when the packet containing the case property (Charas) was desealed in open Court, it was found that Charas was packed in light brown, blue and white plastic packing and thereafter in Khaki Envelope. Learned counsel has submitted that this fact is not mentioned that Charas was wrapped in Khaki Envelope. He stated that complainant Nazeer Ahmed Soomro has admitted that Telephone Exchange is 2 km away from the main gate and on record PW-1 Ameer was shown on duty at Telephone Exchange and that rickshaw was seized by ASI Sharafat Ali from the complainant and that it is not mentioned in the mashirnama of wardat that rickshaw was secured. Learned counsel has also pointed out that witnesses have given different time of seizure of the accused and preparation of mashirnama etc. and that weight of Charas was also doubted, as the witness Aziz Ahmed has stated that 150 gram was used while there is no weight of such nature and there is no date of dispatch / receipt of chemical report (Ex.P-6). He has further submitted that there is no creditability of witnesses, therefore, Court itself has examined PW 4. Learned counsel for the Appellant has further argued that the entire proceedings are hit by Section 21 of CNS Act 1997, as any action under the law is to be taken by an officer not below the rank of Sub Inspector of police, while in the instant case the accused were arrested by security of Port Qasim.
On the other hand, Mr. Mohammad Sarwar Khan, Addl A. G. has submitted that there is strong corroborating evidence. The presence of accused and rickshaw at the place of incident has not been denied by the accused themselves. The only explanation given by the accused that they were going to their relative Sher Ali to deliver him Gurr etc but they failed to corroborate their statement by not calling Sher Ali into witness box. He has further submitted that one accused has also failed to give his background, as to what was the source of his livelihood. Learned Addl. A.G. has explained that witness Nazeer Ahmed (PW2) has specifically stated that although, on record, PW-1 Amir Ali was on duty at Telephone Exchange but it is a normal routine to call / exchange any security guard from one place to another, keeping in view the needs and in that situation duty rosters are not changed. He has further pointed out that there is no allegation of enmity or ill-will against the police, while the accused were apprehended by the security staff of Port Qasim Authority and that, too, in the course of their duty, as they were posted on the security gate. Learned Addl. A. G. has also submitted that there is no violation of Section 21 of CNS Act as formal arrest was made by the police officials and that even if there was any discrepancies in respect to arrest then it was rectified as the Court took cognizance under Section 190 Cr.P.C. and after recording of evidence full opportunity was given to the accused to defend their case. He has also stated that according to Section 166 (2) Cr.P.C. no proceedings of a police officer can be called in question, on the ground that the said officer was not empowered to investigate. Regarding action on the official of Port Qasim Authority, the learned Addl. A. G. has stated that by virtue of Section 49 Cr.P.C, any one can arrest a person suspected of cognizable offence and herein the case the Port Qasim Authority officer, in the course of their duty, have restrained the accused for the purpose of producing them before the police and in doing so, FIR has been lodged by Nazeer Ahmed, Assistant Manager Security, Port Qasim, as Complainant. He has given specific reason in the FIR that on the day of incident, they were checking the vehicles passing through the Gate of Port Qasim, and in that course of working they found contraband item.
Learned Addl. A.G. has also stated that although the action has been initiated by ASI of Police but any defect in the investigation, at the most, can be termed as irregularity and not illegality and to support his contentions, he has cited the authorities as follows:
1. Mohammad Hanif v. The State, 2003 S.C.M.R. 1237
2. Nazar Hussain v. The State, 2002 P.Cr.L.J. 440,
3. The State v. Mohammad Hussain, P.L.D. 1968 S.C. 285.
4. Noorul Islam v. The State, 1986 S.C.M.R. 1836.
5. State through Advocate General Sindh v. Bashir & others, P.L.D. 1997 S.C. 608.
6. Fida Jan v. The State, 2001 S.C.M.R. 36.
7. The State v. Suhail Ahmed and others P.L.D. 1990 FSC 29.
8. State through director General Coast Guards v. Sabro and another, 1992 P.Cr.L.J 1795.
9. Zubair alias Nanna v. the State, 1992 P.Cr.L.J. 2127
The learned Addl. A. G. has also submitted that delay in sending samples to the chemical examiner is immaterial and case is to be considered in the light of entire material, which has come on record. In this respect he has relied upon the case of Ali Muhammad and Mst. Rani v. The State N.L.R. 2003 Criminal 188/192.
I have given my anxious thought to the arguments of both the Learned counsel and have observed that there are some minor contradiction as well as investigation, contrary to Section 21 of CNS Act, but in my view these factual contradiction, are not fatal to the prosecution case, as firstly the accused have themselves admitted their presence in a rickshaw at the security gate of Port Qasim and their version that they were going to deliver some commodity has not been corroborated by any evidence including the “would be” evidence of Sher Ali, to whom the accused allegedly were going to deliver the commodities and according to them he was their relative. The accused have also not examined any witness nor have submitted any proof, as to the fact of their alleged arrest on 25.07.2003, by way of any Complaint etc. by their relatives or friends to the higher authorities that the accused are missing on 25.07.2003.
On the other hand, the security official of Port Qasim are neutral persons and have handed over the accused to police and stood as complainant in the FIR. The mashirs of the recovery of Charas have corroborated the fact of recovery and a sample thereof has been verified as substance, called Charas, by the chemical examiner. The learned counsel for the Appellant has not been able to disprove by any cogent reason or material evidence that the accused have been involved in the matter falsely or there was any other material facts to doubt the intention of the complainant or the police. Although there may be violation of Section 21 of CNS Act, but after court has taken cognizance and punishment has been awarded on the basis of evidence, therefore, the proceedings cannot be vitiated at this stage.
In the circumstances, the appeal is dismissed and the sentence award by the learned CNS Court No.1 in special Case No. 322 of 2003 is maintained.
J U D G E
Samie