HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.172 of 2015
Present: Mr. Justice Khadim Hussain M. Shaikh
Mr. Justice Amjad Ali Sahito
Appellant : Tahir-uz-Zaman
through Mr. Shafique Ahmed, Advocate.
Respondent : The State/ANF through Mr. Habib
Ahmed, Special Prosecutor for the ANF.
Date of hearings : 16.02.2018 &21.02.2018
Date of the decision: : 16.03.2018
J U D G M E N T
Amjad Ali Sahito, J.– Appellant Tahir-uz-Zaman son of Noor-uz-Zaman was tried by the learned Judge of Special Court-I (C.N.S.), Karachi, in Special Case No.857 of 2014, arising out of Crime No.05 of 2014 for offence under Section 6/9-C of Control of Narcotic Substance Act, 1997 registered at police station ANF, Gulshan-e-Iqbal, Karachi. By judgment dated 29.06.2015, the appellant was convicted for offence punishable under Section 9-C of Control of Narcotic Substance Act, 1997 to suffer rigorous imprisonment for Twelve years and six months and imposed fine of Rs.60,000/- (Sixty thousand Rupees Only) and in default of payment of fine, it was further ordered that appellant shall suffer S.I. for nine (9) months more. However, the benefit of Section 382-BCr.P.C. was also extended to the appellant.
2. The brief facts of the prosecution case in nutshell are that on 16.08.2014, at about 1930 hours Inspector Tahir Ahmed Bhatti alongwith H.C-Siraj Khan, PC-Adnan Jahangir and PC-Mukhtiar Ali, LNK-Aqeel Shah and Driver Sikander Ali under the supervision of Incharge Manzoor Ahmed Phull in Government vehicle vide Roznamcha entry No.04 were busy in patrolling. During patrolling received spy information through their high-ups officers that Tahir Zaman for delivering narcotics to his customer waiting at Admore Petrol Pump, near Baqai University Diversion, Super Highway, Karachi. They immediately rushed to the place of incident alongwith informer and saw that one person sitting on standing motorcycle by keeping bag in front on the fuel tank of his motorcycle. The spy informer pointed the said person to be the required person, hence they apprehended him alongwith bag. Inspector Tahir Zaman asked the passerby people to act as witness but they refused to act the same due to fear of narcotic smuggler, therefore, PC-Adnan Jahangir and PC-Mukhtiar Ali act as mashirs and inquired name etc; from accused disclosed his name to be Tahir Zaman S/o Noor Zaman, R/o Moenabad, Mensehra Colony, Tehsil and District Malir, Karachi and permanent address is of Sewabi. After opening the bag, found 10 packets of Charas wrapped with yellow solution tape in shape of balls weighing 1/1 kilogram each total 10 kilogram secured from the possession of the accused Tahir Zaman. All packets were put into the same bag and then put the same into yellow bag and sealed the same for the purpose of chemical examination and so also recovered one motorcycle bearing registration No.KFM-1391 of red colour, with key. Upon his personal search further secured cash Rs.240/=, CNIC, one driving license, one police crime reporter card, two card of Bank Al-Habib, UBL and one mobile phone alongwith sim from his right side pocket of his shirt. Such mashirnama for arrest and recovery was prepared in presence of mashir PC-Adnan Jahangir and PC-Mukhtiar Ali and put their signatures on it. Thereafter, appellant and case property was brought to the police station ANF, Gulshan-e-Iqbal, Karachi, where FIR against the appellant vide Crime No.05 of 2014 under Section 6/9 (c) CNS Act, 1997 was lodged on behalf of the State.
3. After registration of FIR, the investigation was carried out by the Inspector Tahir Ahmed Bhatti, who after recording the statements of PWs under Section 161 Cr.P.C. sent the sealed parcel of secured Charas through PC-Muhammad Qasim on 18.08.2014 to the office of Chemical Examiner, Government of Sindh, Karachi, so also sent the letter to the Excise & Taxation Officer, Karachi to verify the registration of motorcycle recovered from the possession of accused. He received back the checked parcel of Charas alongwith chemical report which is positive from the office of Chemical Examiner and after completing all the formalities, submitted the final report under Section 173 Cr.P.C. against the appellant in the Court of law.
4. The charge at Ex.2 was framed under Section 6/9-C of the Control of Narcotics Substance Act, 1997 on 23.09.2014 against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried.
5. At the trial, in order to establish accusation against the appellant, prosecution had examined the following witnesses:-
(i) PW-1/complainant/investigating officer Inspector Tahir Ahmed Bhatti was examined at Ex.5, who produced roznamcha entry No.4 as Exh-5-A, mashirnama of arrest and recovery as Exh.5-B, FIR at Exh.5-C, letter for verification of motorcycle as Exh.5-D, letter of chemical examination as Exh.5-E and report of Chemical Examiner at Exh.5-F respectively;
(ii) PW-2 PC-Adnan Jahangir was examined at Ex.6;
These witnesses were cross examined by the counsel for appellant. Thereafter, leaned Special Prosecutor for the ANF closed the prosecution side vide Statement at Ex.7.
6. Statement of appellant was recorded under Section 342 Cr.P.C. at Ex.8, in which he has denied the allegations as leveled by the prosecution and stated that he is innocent; he has no concern with the alleged recovery of contraband Charas; nothing was recovered from his possession; he was arrested on 14.08.2015 by a person who was in civil dress at the instance of one narcotic dealer Muhammad Saleem resident of the area of accused. Furthermore, the Appellant examined himself on oath as DW-1 at Exh.9; so also examined witnesses namely Noor Zaman, father of the appellant as DW-2 at Exh.10 and DW-3 Niaz Ali Khan at Exh.11 in his defense. Thereafter, counsel for the appellant closed the side vide filing the statement at Exh.12.
7. Trial Court after hearing the parties counsel and on the assessment of evidence, convicted and sentenced the appellant as stated above. Hence, appeal has been preferred against the impugned judgment.
8. Mr. Shafique Ahmed, learned counsel for the appellant and contended that it was the case of spy information in advance inspite of that Inspector Tahir Ahmed Bhatti failed to associate any independent and respectable person from the place of arrest and recovery though the place of incident is thickly populated area, hence, there is a violation of Section 103 Cr.P.C; that all the prosecution witnesses are the official of ANF and P.S. Gulshan-e-Iqbal, Karachi and their evidence required independent corroboration; the Appellant previously is not involved in any criminal case. Lastly, he has prayed that the sentence of the appellant may be reduced into the period he has already undergone contending that when appellant was arrested he was having one minor female child and during his detention he has been blessed with another female baby; appellant and his family members are very poor and the appellant is only the bread earner of his family, and due to confinement of the appellant; his family members are passing miserable life; and that the appellant undertakes that he will prove himself a liable law abiding citizen and will not indulge himself in any unlawful act.
9. Conversely, Mr. Habib Ahmed, learned Special Prosecutor for the ANF while supporting the impugned judgment, has argued that prosecution has proved its case against the appellant; that ANF officials have no enmity to foist such a huge quantity of Charas upon the appellant; that the entire recovered Charas was sent to the Chemical Examiner as a sample within 72 hours; that arrival and departure entries have been produced in the evidence and positive report of Chemical Examiner has also been produced in evidence; he has therefore, prayed that the appeal may be dismissed.
10. We have heard the learned counsel for the appellant and the learned Special Prosecutor for the ANF and gone through the evidence with their assistance.
11. As regard the contention of learned counsel for the appellant for non-performance of provision of Section 103 Cr.P.C. is concerned, it would be appropriate to refer Section 25 of the Control Substance Act, 1997, which reads as under:-
“25. Mode of making searches and arrest.---The provisions of the Code of Criminal Procedure, 1898, except those of section 103 shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of section 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections.”
In view of the above provision of law, applicability of Section 103 Cr.P.C. in narcotic cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate the conviction and thus the evidence of ANF officials would be competent and their evidence cannot be discarded, only for the reasons that they are police officials. They have furnished straight forward and confidence inspiring evidence and there is nothing on record to show that they deposed against the appellant maliciously or out of any animus. So far as the independent witnesses is concerned, it has been time and again observed by the Honourable Superior Courts that people do not cooperate and give consent to be cited as a witnesses of recovery because it invites annoyance of the people relating to drug mafia. In such Police witnesses are good witness until and unless malafide is established against them and the instant case involving recovery of 10 Kg Charas and it is hardly believable that police official would plant such huge quantity of narcotics upon the appellant from their own sources more particularly when no malafide or animosity has been established by the appellant. Reference may well be made to the case of Muhammad Sarfaraz v. the State (2017 SCMR 1874): wherein it is held that;
“The arguments regarding applicability of section 103, Cr.P.C. has no force as section 25 of the Act had ousted the applicability of section 103, Cr.P.C. in the cases of narcotics.”
Reliance may also be placed on case reported in 2017 SCMR 283 (Re-State/ ANF v. Muhammad Arshad) wherein the Honourable Supreme Court of Pakistan has held as under:-
“.. We may mention here that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case.”
Even otherwise, mere status of one as ‘official’ would not alone prejudice the competence of such a witness unless and until he is proved to be interested who has motive to falsely implicate an accused or has previous enmity with the person involved.
12. In view of the above mere fact that prosecution witnesses belonged to ANF officers by itself cannot be considered as valid reason to discard their statements as police employees are the competent witnesses like any other independent witnesses and their testimonies cannot be discarded merely on the ground that they are police officials. In the instant case, the defence has not brought any proof of enmity with the complainant as well prosecution witnesses and thus in absence thereof the competence of prosecution witnesses regardless of their being officials was rightly believed.
13. From the perusal of record it appears that the appellant was caught red-handed; narcotics were recovered from his possession and entire sealed recovered charas was sent to the chemical analysis. The report of the chemical examiner received positive. These are always sufficient to conclude that prosecution successfully discharged its burden thereby shifting the burden upon the accused within meaning of Section 29 of the Act. Such burden would require the accused to firstly cause dent in prosecution case and secondly to establish least justify possibility of false implication or foisting of huge quantity of charas, but defence has failed in doing so.
14. As regards the last contention of learned counsel that when the appellant was arrested, he was having a minor female child and during his confinement was blessed with another female child and the appellant is the only male as well as bread earner of his family members therefore, sentence may be reduced into the period already undergone, is concerned, in the case in hand the appellant, who is in jail for last five years and the family of the appellant, per him, is passing miserable life due to confinement of the appellant in jail. Needless to say that normally, it is very difficult for an unemployed mother to be a bread earner of her family while carrying the infant children in her lap. The position, being so, would be nothing but a misery where mother as well children of such tender age have suffered too for act of the appellant. The peculiar facts and circumstances, so pleaded by the counsel for the appellant, having gone unchallenged by prosecution may well be taken into consideration for departing from the normal practice. Further, as per jail report that the conduct of the appellant during confinement is “satisfactory”. The Appellant also undertakes that he will not deal with the narcotic in future. The appellant is first offender and has no previous criminal record/history in his credit. Besides, the appellant claims himself to be only male member of the family and has also served about five years of imprisonment, therefore, it is appropriate that appellant may be given an opportunity to improve himself as a law abiding citizen so also being head of his family provide them basic necessity in a good manner, coupled with existence of the mitigating circumstances in the prosecution case, such as non examination of PC-Mohammad Qasim who allegedly delivered the subject narcotics substance in the office of chemical examiner and making no efforts to associate any independent person form the locality as witness in the recovery proceedings.
16. Considering the above facts and circumstances of the case, we are of the view that prosecution has succeeded to bring the guilt of accused at home thus the appeal is liable to be dismissed on merits. However, in view of discussion made hereinabove on plea of reduction of sentence, we find it a fit case for departure from the normal practice of determining quantum of sentence. The Jail Roll dated 19.02.2018 reflects that the appellant has served the sentence for four (04) years, Eleven (11) months and twenty Six (26) days up to 19.02.2018, including remissions and by now the appellant has remained in custody for five (05) years, therefore, in our humble view it would serve both the purposes of deterrence and reformation, if the sentence, awarded to appellant, is reduced to one already undergone by him. Accordingly, the sentence of the appellant is altered and reduced to the period which he has already undergone which include the period he was to undergo in lieu of fine.
17. These are the detailed reasons for the short order dated 21.02.2018 announced by us which reads as under:
“21.02.2018.
“Heard learned counsel for the Appellant and learned Special Prosecutor ANF. For the reasons to follow, the appeal is dismissed on merits and conviction awarded to appellant Tahir Zaman son of Noor Zaman Yousuf Zai vide impugned judgment dated 29.06.2015, passed by the Special Court-I, (Control of Narcotics Substances), Karachi in Special Case No.857 of 2014 re-the State v. Tahir Zaman, emanating from Crime No.05 of 2014 registered at P.S. ANF Gulshan-e-Iqbal, Karachi for offence under Section 9(c) Control of Narcotics Substances Act, 1997 is maintained, however, the sentence awarded to the appellant is altered and reduced to the period he has already undergone which includes the period he was to undergo in lieu of the fine. The appellant shall be released forthwith if his custody is not required in any other case. The listed application M.A. No.8448 of 2015 also stands disposed of.”
JUDGE
JUDGE
Karachi.
Dated ____-03-2018
S.Ashfaq/PS*