THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 86 of 2021

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        Syed Ubaid-ur-Rehman through Mr. Mustafa Safvi advocate

Respondent:                                     The State through Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh

Date of hearing:                              13.09.2021

Date of announcement:                16.09.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant by way of instant appeal has impugned judgment dated 22.01.2021, rendered by learned  1st Additional Sessions Judge, Karachi East, whereby the appellant for being in possession of 1020 grams of heroin powder for an offence punishable under Section 6/9 of the CNS Act 1997 has been convicted and sentenced to undergo imprisonment for five years  and to pay fine of Rs.50,000/- and in case of default in payment of fine, to undergo imprisonment for two months with benefit of section 382(b) Cr.P.C.

2.       It is the case of the prosecution that the appellant was found possessing/carrying through his car 1050 grams of crystal and 1020 grams of heroin powder by police party of P.S Model Colony Karachi, led by SIP Zulfiqar Ali, for that he was booked and reported upon.

3.       The appellant denied the charge and prosecution to prove it, examined complainant SIP Zulfiqar Ali, P.W mashir PC Junaid Ali and I.O SIP Syed Muhammad and then closed its side.

4.       The appellant in his statement recorded under Section 342 Cr.P.C denied the prosecution’s allegations by pleading innocence by inter-alia stating that he and his cousin Syed Hafizur Rehman were taken by the police when they were going back to their house after visiting house of Bilal. Hafizur Rehman was let off by police after acceptance of bribe while he was involved in this case falsely by the police on account of his failure to pay the money being poor. However, the appellant did not examine himself on oath to disprove the charge against him in terms section of Section 340(2) Cr.P.C, but examined Syed Rozuddin, Syed Hafizur Rehman and Bilal in his defense.

5.       It was impliedly stated by D.Ws Syed Rozuddin, Syed Hafizur Rehman and Bilal that the appellant being innocent has been involved in this case falsely by the police. An application was brought on record by them, which allegedly was moved by Rozuddin the father of the appellant on 22.07.2020 with SHO PS Manghopir stating therein that his son the appellant and nephew Hafizur Rehman have not returned back to their house. No official of PS Manghopir however was called by the appellant to prove filing of such application with PS Manghopir by his father.  

6.       On evaluation of evidence so produced by the prosecution the appellant was convicted and sentenced by way of impugned judgment, only for being in possession of heroin powder by learned trial Court as is detailed above.

7.       It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; that there is no independent witness to the incident; that none has been examined to prove the safe custody and transmission of the contraband substance to chemical examiner; that the net weight of the contraband substance is different to its gross weight and evidence which the appellant has brought on record in his defense has not been considered by the learned trial Court in juxtaposition with the evidence of prosecution. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon the cases of Basharat Hussain Shah vs. The State (2020 P.Cr.L.J Note 39), Tariq Pervez vs. The State (1995 SCMR 1345), Abdul Ghani & others vs. The State and others (2019 SCMR 608), Haji Nawaz vs. The State (2020 SCMR 687), Muhammad Jabir @ Viki vs. The State (2019 MLD 1743), Hussain Ali vs. The State (2020 MLD 70), Bashir Khan vs. The State (2010 P.Cr.L.J 348), Muhammad Sultan @ Machhar vs. The State (2018 P.Cr.L.J 211) and Ameer Hamza vs. The State (2015 P.Cr.L.J 1402).

8.       Learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of appeal of the appellant by contending that the appellant has already been dealt with leniently by learned trial Court. In support of his contention, he relied upon case of Ibrar Ullah vs. The State (2021 SCMR 128).

9.       We have considered the above arguments and have perused the evidence on record.

10.     As per the case of prosecution, the appellant beside heroin powder was also found to be in possession of crystal which is said to be a narcotic substance. He impliedly has been acquitted for being in possession of crystal for the reason that Industrial Analytical Center H.E.J Research Institute of Chemistry University of Karachi, which analyzed the crystal was not notified as laboratory by the Government. Perhaps in that context, it is contended by learned Addl. P.G for the state that the appellant has already been dealt with leniently by learned trial Court. As per complainant SIP Zulfiqar Ali and P.W mashir PC Junaid Ali on 23.07.2020, they with rest of the police personnel were conducting patrol, when reached adjacent to Mehran Depot, Moinabad road Model Colony Karachi, they found the appellant in suspicious condition in a car. It was signaled to stop. On inquiry the appellant disclosed his name as Ubaid ur Rehman and on search from front seat of his car was secured a shopper, it was found containing three packets, those were found containing crystal and heroin powder. Heroin powder was weighed to be 1050 grams while crystal was weighed to be 1020 grams. A memo of arrest and recovery was prepared at the spot and the appellant with the recovery so made from him was taken to P.S Model Colony, there he was booked in the present case formally. The investigation of the case then was conducted by SIP Syed Muhammad, which was followed by submitting of the charge sheet against the appellant. They have stood by their version on all material points with regard to the arrest of the appellant and recovery of narcotics substance from him. They could not be disbelieved only for the reason that they are police officials. Indeed they were having no ill will to have involved the appellant in this case falsely by making foistation of narcotic substance upon him. At least the heroin powder for which the appellant has been convicted and sentenced has been subjected to chemical examination on the very next day to its recovery and there was no allegation of its substitution and/or tempering with it, therefore, examination of Incharge of Malkhana or the person who taken the same to chemical examiner was hardly required. It is true that the gross weight of the heroin powder recovered from the appellant was found to be 1010 grams by the chemical examiner, but such difference hardly creates a doubt with regards to the very recovery  of the heroin powder as it entails same punishment as is prescribed in the case of Ghulam Murtaza and others vs. The State (PLD 2009 Lahore 362). In these circumstances, learned trial Court was right to make a conclusion that the prosecution has been able to prove its case against the appellant beyond shadow of doubt so far recovery of heroin powder from him is concerned.

11.     The D.Ws being closely related to the appellant were having reason to support him therefore, their evidence could not be given preference over and above the confidence inspiring evidence of the prosecution, which even otherwise, is strongly supported in shape of recovery of contraband substance from the appellant with remote chance of its foistation.

12.     The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Basharat Hussain (supra), the acquittal of the accused was recorded mainly for the reason that the police was having beforehand information of the incident yet no independent witness was associated. In the instant case the police was having no beforehand information of the incident. In case of Tariq Pervez (supra) it was held by Honourable apex Court that the benefit of single circumstance creating doubt is to be extended to the accused. In the instant case there appears hardly a circumstance the benefit whereof could be extended to the appellant. In the case of Abdul Ghani and others (supra), issue of safe transmission of the charas to the chemical examiner was involved. In the instant case, the heroin powder has been delivered to the chemical examiner on the very next day of its recovery in sealed condition and there was no dispute with regard to its substitution and/ or tempering with it even by the appellant at trial. The substance so sent to the chemical examiner was also found by him to have been properly sealed. In the case of Haji Nawaz (supra), the acquittal of the accused was recorded mainly for the reason that the positive report of the forensic laboratory was not put to him during course of his examination under Section 342 Cr.P.C. In the instant matter such report has been confronted to the appellant during course of his examination under Section 342 Cr.P.C under question No. 02. In the case of Muhammad Jabir alias Viki (supra), the acquittal of the accused was recorded mainly for the reason that the case property was not sealed at the spot. In the instant matter, the case property was sealed at the spot. In the case of Hussain Ali (supra), the acquittal of the accused was recorded mainly for the reason that the substance was sent to the chemical examiner with unexplained delay of 14 days to its recovery. In the instant matter the heroin powder for which the appellant has been convicted and sentenced was sent to the chemical examiner on the very next day of its recovery. In the case of Bashir Khan (supra), the acquittal of the accused was recorded mainly for the reason that the memo of search was not produced at trial by the prosecution. In the instant matter the memo of arrest of the appellant and search/recovery so made from him has been produced by the prosecution at trial. In the case of Muhammad Sultan alias Machhar (supra), the main reason for the acquittal of the accused was that only 10 grams of charas was recovered and mode and style of sampling was not described. In the instant matter, the entire heroin powder recovered from the appellant has been sent to the chemical examiner and there is no dispute with regard to mode of its sealing. In the case of Ameer Hamza alias Hamza (supra), the acquittal of the accused was recorded mainly for the reason that complainant and mashir to recovery contradicted each other with regard to the manner whereby charas was secured from the accused. In the instant matter, no such contradiction is noticed.

13.     In view of facts and reasons discussed above, it could be concluded safely that no mis/non-reading of evidence is apparent of the record on the part of learned trial Court, which may justify making interference with the impugned judgment. Consequently, the instant appeal is dismissed.

 

JUDGE

 

JUDGE