HIGH
COURT OF SINDH AT KARACHI
Criminal
Jail Appeal No.351 of 2010
Present: Mr.
Justice Sajjad Ali Shah
Mr. Justice Naimatullah Phulpoto
Appellant: Qazi Javed Khan and Abdul Shakoor through Mr. Raza Mohammad
Raza Advocate.
--------------------------------------------------------
Respondent: The
State through Mr.Habib Ahmed and Mr. Mohammad Irfan
Special Prosecutors ANF.
--------------------------------------------------------
Date of Hearing: 16.04.2013
-------------
Date of Announcement: 16.04.2013
-------------
J U D G M E N T
NAIMATULLAH
PHULPOTO, J- Appellants Qazi Javed Khan and Abdul Shakoor were
tried by learned Special Judge, Special Court No.I
(Control of Narcotic Substances), Karachi for offence u/s 6/9(c) of Control of
Narcotic Substances Act, 1997. After full-fledged trial, appellants were
convicted under Sections 6/9(c) of Control of Narcotic Substances Act, 1997 and
sentenced to imprisonment for life each and to pay fine of Rs.50,000/- each and
in case of default in payment of fine, they were directed to suffer R.I for
three months more. Appellants were extended benefit of Section 382-B Cr.P.C. By
this judgment, we dispose of aforesaid appeal.
2. Brief facts
of the prosecution case, as disclosed in the FIR are that on 07.01.2006 at 1600
hours Sub Inspector Mansoor Sultan of P.S ANF
Clifton, Karachi, left P.S vide Roznamcha entry No.9 in Government mobile for
patrolling in the area of Orangi Town along with his
subordinate staff namely PCs Shahid Raza, Haji Mehar, Mukhtar Ali and other ANF officials. During patrolling, he
received spy information regarding presence of the present appellants having
huge quantity of the narcotic substance at Pareshan Chowk, Faqeer Colony, Orangi Town, Karachi. After receipt
of spy information, ANF officials proceeded to the pointed place and saw
present appellants standing in the suspicious manner. They were encircled and
apprehended by SI Mansoor Sultan. He requested the
private persons standing around the place of arrest and recovery of the accused
to act as mashir in this case, but they refused. Thereafter, SI Mansoor Sultan made PCs Shahid Raza and Mukhtar Ali as mahsirs and enquired the names of the accused persons. One
person disclosed his name as Abdul Shakoor son of
Abdul Qadir and another disclosed his name as Qazi Javed Khan son of Amaldin. Both accused
persons were found in possession of nylon kattas in
their hands, which were taken into possession by ANF officials. On opening of
the nylon Katta of accused Qazi
Javed, it was found that 16 tins/dabba of “Iranol oil” containing charas in the shape of litter.
Charas was weighed, which became 57.800 Kgs. On
opening of nylon Katta of appellant Abdul Shakoor, they found 15 tins/dabba
of “Iranol oil” containing slabs/litter of charas weighing 32.200 Kgs. ANF
officials weighed the charas, which became 46.048 Kgs.
Total weight of the charas recovered from both nylon Kattas
was 103.848 Kgs. Both appellants were arrested in
presence of mashirs and mashirnama of arrest and recovery was prepared. In the
presence of mashirs, A.N.F. officials drawn sample weighing 10 grams from each
recovery and sealed the same separately for sending to the chemical examiner
for analysis and report. Thereafter, both the appellants/accused and recovered
Charas were brought to the P.S ANF, where a case No.02/2006 under Section 9(c)
of Control of Narcotic Substances Act, 1997 was lodged by SI Mansoor Sultan on behalf of state.
3. During
investigation 161 Cr.P.C statements of P.Ws were record. Samples were sent to
the Chemical examiner. Positive chemical report was received. On the conclusion
of the investigation, challan was submitted against both the appellants/accused
under Section 6/9(c) of Control of Narcotic Substances Act, 1997.
4. Both appellants pleaded not guilty to
charge and claimed to be tried.
5. At the trial,
prosecution examined complainant SI Mansoor Sultan at
Ex.10, who produced memo of arrest of appellants and recovery as Ex.10/A, FIR
at Ex.10/B, positive report of chemical examiner at Ex.10/D and Mashir PC Mukhtar Ali was
examined at Ex.11. Thereafter prosecution side was closed.
6. Statements of
the appellants/accused were recorded by the trial court under Section 342
Cr.P.C at Ex.13 and 14, in which both the appellants denied the prosecution
allegations and stated that Charas have been foisted upon them and positive
report of the chemical examiner has been managed. Appellant Qazi
Javed Khan has stated that ANF officials are
interested witnesses. The same plea is raised by appellant Abdul Shakoor. Both of them have stated that they have not been
arrested by ANF officials from Preshan Chowk. Both the appellants did not lead any defence and
declined to give any evidence on oath in disproof of prosecution allegations.
7. Learned trial
court after assessment of the evidence found the appellants guilty, convicted
and sentenced them as stated above.
8. We have carefully
heard learned counsel for the appellant as well as learned
special prosecutors ANF and perused the entire evidence available on record.
9. Complainant
SI Mansoor Sultan of ANF has stated that on
07.01.2006, he left P.S along with his subordinate staff namely PC Shahid Raza, Haji Mehar, Mukhtar Ali Memon and other ANF officials in the government vehicle
vide Roznamcha entry No.09. During patrolling when they reached at Orangi Town, they received spy information about the
presence of two persons along with huge quantity of the narcotic contraband at Preshan chowk, Faqeer Colony. SI Mansoor Sultan gave
such information to his high officials and proceeded to the pointed place and
reached there at 4:00 PM, where he saw two persons in the suspicious manner,
they were apprehended. SI Mansoor Sultan requested
private persons present around the place of recovery but they avoided to act as mashir in the case. Thereafter, PCs Shahid Raza and Mukhtar Ali were made as mashirs. SI enquired the names,
one accused disclosed his name as Qazi Javed son of Amaldin r/o Barah Peshawar and another disclosed his name as Abdul Shakoor r/o Pankata Chowk, Peshawar. It is stated that accused Qazi Javed had two cartons
containing 16 tins/dabbas, the same were cut and 171
slabs of Charas were found. The same were weighed and weight of the same was
57.800 Kgs. He has further deposed that two cartons
were recovered from the possession of appellant Abdul Shakoor
containing 15 tins/dabbas, the same were cut and found 110 slabs of Charas from 9
packets out of 15 packets. 110 slabs were weighing about 32.200 Kgs. Remaining 6 tins contained Garda charas
each Tin/daba was weighing about 2.308 grams. Total
weight of the recovered Charas from 6 tins was 13.848 Kgs, total weight of the recovered Charas
was 103.848 Kgs. I/O separated samples weighing 10
grams from each recovered slabs, total 281 samples were drawn by him. 10 grams
samples were taken out from each garda charas. All samples were put in plastic
bag and packed in khaki envelope and sealed. Remaining recovered property was
put in the same tins and put in the same cartons and sealed. Thereafter,
personal search of accused Qazi Javed
Khan was conducted by SI Mansoor Sultan in presence
of mashirs and cash of Rs.1500/- Pakistani currency and phone diary were
recovered. Personal search of appellant Abdul Shakoor
was also conducted in presence of the mashirs. From his possession Rs.1000/-
were recovered. Both the appellants were arrested in presence of mashirs.
Mashirnama of arrest and recovery was prepared. He produced it at Ex.10/A.
Thereafter appellants and case property were brought at police station where he
lodged FIR against appellants on behalf of state and produced it at Ex.10/B.
Recorded 161 Cr.P.C statements of P.Ws. On 17.01.2006 sent samples to the
chemical examiner. Delay has been explained as there were Eid
holidays. He received positive chemical report and produced it at Ex.10/D. In
the cross-examination, he has admitted that he has not mentioned the number of
Roznamcha departure entry. He has admitted that place of recovery was thickly
populated area. However, he has denied suggestion that Charas have been foisted
upon the accused. He has denied the suggestion that appellant Qazi Javed Khan was arrested from
Ittehad Town and Abdul Shakoor
was arrested from Mohajir Camp.
10. P.W-2/mashir Mukhtar Ali has stated
that on 07.01.2006 he along with SI Mansoor Sultan,
PC Shahid Raza, PC Haji Mehar and driver Shakeel Ahmed left P.S for patrolling.
During patrolling SI received spy information about the presence of the present
accused at Pareshan chowk.
ANF officials proceeded to the pointed place where both the accused were found
in suspicious manner and were apprehended. SI Mansoor
Sultan requested persons standing there to act as mashir, but they refused. He
was made as mashir and co-mashir was PC Shahid Raza. One accused
disclosed his name as Qazi Javed
and another disclosed his name as Abdul Shakoor.
Appellant Qazi Javed Khan
had one nylon Katta. It was opened, there were two cartons in which 16 Mobil Oil tins were
lying. The same were cut and found 171 slabs/litter of Charas.
Recovered charas was weighed which became 57.800 Kgs.
Appellant Abdul Shakoor was also carrying one nylon kata,
it contained two cartons. On opening, found 15 oil tins. They cut 9 tins and
found 110 slabs/litters of Charas weighing 32.200 Kgs were recovered. Remaining 6 tins containing garda charas weighing 13.848 Kgs each
tin was weighing about 2.308 Kgs were recovered. ANF
officials had taken out 281 samples from the recovered charas in the shape of
slabs and 6 samples from Garda Charas. Each sample was weighing about 10 grams.
All the samples were put in khaki envelope and sealed separately. Remaining
recovered Charas was put in same nylon kata and sealed. He has further stated
that on the personal search of accused Qazi Javed one NIC, one telephone diary and cash of Rs.1500/-
were recovered. On personal search of accused Abdul Shakoor
cash of Rs.1000/- was recovered as well as one telephone diary. He acted as
mashir. Co mashir was PC Shahid
Raza. Such mashirnama was prepared by Sub Inspector.
Thereafter, accused and case property were brought to the police station where
SI lodged FIR on behalf of State against the appellants. He was cross-examined
by the learned defence counsel. He has denied the suggestion that he has
deposed falsely at the instigation of S.I. He has also denied the suggestion
that Charas has been foisted against the appellants.
11. Mr. Raza Mohammad learned Advocate for the appellants argued
that both the P.Ws belong to ANF and their evidence
did not inspire confidence. Place of recovery was thickly populated area, but
the independent persons of the locality were not made as mashirs of recovery.
It is further submitted that narcotics substance was sent to the chemical
examiner after 72 hours of its recovery. There are major contradictions in the
evidence of prosecution witnesses. Prosecution story is full of doubts.
12. Mr. Habib
Ahmed learned special prosecutor ANF argued that huge
quantity of the narcotic substance was recovered from the possession of the
appellants. Report of chemical examiner was positive. Prosecution witnesses had
no motive to falsely implicate the appellants in this case. The private persons
had refused to act as mashir and evidence of the ANF officials was as good as
that of any private person. He has also argued that provisions of Section 103
Cr.P.C have been excluded in terms of Section 25 of CNS Act 1997. He has fully
supported the impugned judgment and prayed for dismissal of the appeal.
13. We have
carefully heard the learned counsel for the parties and scrutinized the entire
evidence. Both the prosecution witnesses have clearly demonstrated complete
unanimity on all aspects of the case, particularly recovery proceedings.
Learned Advocate for the appellants could not point out any material
contradiction in the evidence of the prosecution witnesses, so as to create a
dent in the prosecution case. It is settled principle that variations in the
statements of prosecution witnesses which are neither material nor serious
enough to affect the case of prosecution adversely are to be ignored by Court. No
enmity, ill-will or grudge against the prosecution witnesses has been brought
on record to satisfy the court that prosecution witnesses have falsely
implicated the appellants. Despite lengthy cross-examination the veracity of
the prosecution witnesses could not be shattered and nothing favourable to the accused could be extracted from their
statements. The most important aspect of the case is that huge quantity of
103.848 Kgs of Charas could
not be thrust upon the appellants in absence of any tangible and concrete
enmity, which has not been proved by the defence. Evidence of prosecution
witnesses is corroborated by the positive chemical report. Delay of 07 days in
sending samples to the chemical examiner has also been explained and it is
stated that due to Eid holidays delay was caused. The
appellants could not point out any misreading or non-reading of evidence
resulting into miscarriage of justice. There is also no legal force in the
argument of learned defence counsel regarding non-association of public
witnesses at the time of recovery. Suffice it to observe that application of
provision of Section 103 Cr.P.C has been excluded under section 25 of the CNS
Act as laid down by Honourable Supreme Court in the case of Fida Jan Vs. The State (2001 SCMR 36).
The prosecution witnesses being members of the raiding party were natural
witnesses of the recovery and their testimony cannot discarded merely on the
ground that they were the employees of ANF. Reference in this context can be
made to the case of Riaz Ahmed Vs. The State (2004 SCMR 988). Relevant portion is
reproduced as under:
“The
argument of the learned counsel that the testimony of police officials does not
inspire confidence is totally devoid of any force. Nothing has been brought on
record that any of the witnesses was having any malice against the petitioner.
The police officials are as good witnesses as private persons of the society.
The testimony of the prosecution cannot be thrown overboard simply on the
ground that it has come from the police officials.”
The appellants during trial failed to substantiate that
Charas recovered was not in their exclusive possession, therefore, merely
raising plea that they were arrested from other place and not from the place
which has been shown by the prosecution would not be sufficient to exonerate
the appellants from the charge. It is provided in Section 29 of CNS Act that it
may be presumed, unless and until the contrary is proved, that accused has
committed offence under this Act in respect of narcotics substance and once
prosecution established recovery beyond doubt then the burden is shifted to the
accused to discharge innocence and conviction and sentence recorded by the
trial court then would be unexceptionable when accused fails to discharge
burden as per provisions contained in section 29 (ibid). The defence version
that recovered Charas have been foisted upon the appellant, such defence plea was
not found plausible by learned trial court for valid reasons. Non-production of
the Roznamcha entry would not cut the roots of prosecution case in this case
because during trial appellants never insisted the complainant/I.O for the
production of the same in evidence. Prosecution has successfully brought home
the guilt of the appellants by producing the witnesses of recovery of narcotics
material and positive report of the chemical examiner. Learned trial court has
rightly appreciated the evidence in accordance with the settled principles of
law. We find no illegality/infirmity in the judgment recorded by the learned
Judge, Special Court-I (CNS) Karachi, which is unexceptionable.
14. For our above
stated reasons, we do not find substance in this appeal,
consequently the same is hereby dismissed. These are the reasons for a short
order announced by us on 16th April 2013.
JUDGE
JUDGE
Gulsher/PA