IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.379 of 2011

Present: Mr. Justice Sajjad Ali Shah

Mr. Justice Naimatullah Phulpoto

J U D G M E N T

Date of Hearing: 16.01.2013 .

Appellant: Awal Raef through Mr. Aman Shirin Khattak Advocate

Respondent: The State through Ms. Sheeraz Iqbal Chaudhry standing counsel

NAIMATULLAH PHULPOTO, J.- Appellant Awal Raef and another were tried by learned Special Judge-II (CNS) Karachi, in Special Case No.204/2008. Learned Trial Court vide judgment dated 25^th August 2011 convicted appellant under Section 9(c) Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life and to pay fine of Rs.1,000,000/- (Rupees One Million). In case of default in payment of fine he was directed to suffer four years R.I. Appellant was also extended benefit of Section 382-B Cr.P.C.

2. The brief facts of the prosecution case leading to the filing of the appeal are that on 19.07.2008, Director of Intelligence and Investigation-FBR, Karachi, received spy information to the effect that a considerable quantity of contraband Poppy Straw has been brought in the Karachi city. On such information a team was constituted under the supervision of Intelligence officer S. Zaffar Hussain Naqvi, who left along with his staff and intercepted one Mazda Truck bearing Registration No.PX-0875 on 19.07.2008 at 1930 hours near Naval Colony, RCD Highway, Karachi, which was being driven by appellant Awal Raef son of Zar Muhammad. Complainant S.Zafar Hussain Naqvi Intelligence Officer asked from the driver about the articles loaded in the truck but no satisfactory reply was given. Thereafter, search of the articles lying in the truck was conducted in presence of mashirs as well as in the presence of the appellant. During search of the Truck, 40 jute bags of Poppy Straw weighing 2125 Kgs were found. Samples were drawn at the spot. Mashirnama of arrest of the appellant and recovery was prepared in presence of mashirs namely Intelligence officer Saeed Farooqi and Shahab Sabir. Appellant, Truck and case property were brought to the Intelligence office, where FIR against the appellant under Section 9(c) of the Control of Narcotics Substances Act, 1997 was registered. During investigation it transpired that Truck belonged to one Yar Mohammad. He was also joined as accused in the case. 161 Cr.P.C statements of P.Ws were recorded. Six samples 50 grams each of Poppy Straw were sent to the chemical examiner, a positive report was received. On the conclusion of the investigation, Challan was submitted against accused Awal Raef and Yar Muhammad under above referred sections.

3. Trial Court framed the charge against the appellant Awal Raef and another. Appellant pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined before the Trial Court complainant Syed Zafar Hussain Naqvi Intelligence Officer and P.W/mashir Saeed Farooqi Intelligence officer, Custom Intelligence Department.

4. Statements of appellant and another under Section 342 Cr.P.C were recorded.

5. After hearing the learned counsel for the parties, learned Trial Court convicted appellant Awal Raef and sentenced him as stated above, however, co-accused Yar Muhammad was acquitted.

6. Mr. Aman Shirin Khattak learned counsel for the appellant argued that both the prosecution witnesses belonged to the Custom Intelligence, no private person of the locality has been examined and there is violation of section 103 Cr.P.C. It is further argued that the appellant was the driver of the Truck, he had no knowledge regarding Poppy Straw packed in the bags. Lastly it is submitted that appellant is the supporter of a large family in case appeal is dismissed, his sentence may be reduced to that of already undergone.

7. Ms. Sheeraz Iqbal Chaudhry learned standing counsel supported that the impugned judgment and argued that evidence of the prosecution witnesses was reliable and trustworthy, corroborated by the positive chemical report. Prosecution witnesses had no enmity to falsely implicate the appellant in the commission of offence. Lastly, it is submitted that appellant was driving Truck at the time of recovery of the Poppy straw coupled with the fact that only appellant was present in the Truck. Appellant could not be absolved from the responsibility of the commission of the offence.

8. We have minutely examined the findings recorded by the trial Court, it appears that evidence has been properly appreciated according to the settled principles of law, recovery witnesses remained consistent, so far as time, place and mode of recovery is concerned. They were subjected to lengthy cross examination by the defense counsel but nothing favourable to appellant came on record. Trial Court has considered each and every piece of evidence. Violation of Section 103 Cr.P.C has no consequence in view of exclusion of the said provision of Criminal Procedure Code by Section 25 of Control of Narcotic Substances Act, 1997. It is also settled law that mere fact that prosecution witnesses belonged to Custom Intelligence by itself cannot be considered valid reason to discard their evidence. It is proved by cogent evidence that Poppy straw was recovered from the Mazda Truck which was being driven by the appellant and appellant is responsible for transportation of the narcotics having knowledge of the same, such principle has been laid down by Honourable Supreme Court of Pakistan in the case of Kashif Amir Vs. The State (PLD 2010 S.C. 1052), while observing as under:-

“It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is Incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession.”

Therefore, Trial Court was justified to record conviction against the appellant. In narcotics cases, now it is settled law that in case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands otherwise proved the approach of the Court should be dynamic and pragmatic. Learned counsel for the appellant has also failed to point out any piece of evidence, which was misread by the trail Court or decided the case against the appellant in violation of any provision of law or any principle laid down by this Court. In the view what has been discussed above, there is no merit in the appeal, the same is dismissed.

9. From perusal of evidence it transpires that 2125 kilograms poppy straw was recovered from the bags lying in the vehicle driven by the appellant. Six samples, 50 grams each, were drawn from the recovered substance for sending to the Chemical Examiner for report. Chemical Examiner received one packet of poppy straw of 3 grams. The given samples of poppy straw contained several alkaloids such as Morphione, Codeine with other opium narcotics. For the safe administration of justice it may be concluded that appellant was liable to be held responsible for 3 grams poppy straw for which report is positive as mentioned above. Reliance in this regard can be placed upon the case of Amir Zeb v. the State (PLD 2012 SC 380). Learned counsel advocate for the appellant has also argued that lenient view may be taken in the sentence as appellant is sole supporter of his large family and there is nothing on record that he is previous convict, therefore, we dismiss the appeal and maintain the conviction and reduce the sentence to 14 years R.I. Superintendent Central Prison, Karachi is directed to calculate remissions accordingly.

These are the reasons for our short order announced by us on 16.01.2013.

JUDGE

JUDGE