IN THE HIGH COURT OF
SINDH, KARACHI
Criminal Appeal No. 16 of 2012
Appellant: Imtiaz
Javed through Mr. Hussain Bux Baloch, Advocate
Respondent: The
State through Mr. Habib Ahmed, Special Prosecutor, A.N.F.
Date of hearing: 24.05.2013
Date of announcement: 31.05.2013
J U D G M E N T
Naimatullah
Phulpoto, J. :-- Appellant Imtiaz
Javed was tried by learned Special Judge, CNS-I, Karachi in Special Case
No.15/2007 (The State versus Imtiaz Javed), under Section 9(c) of the Control
of Narcotic Substances Act, 1997. After holding full dressed trial, appellant
Imtiaz Javed was convicted under Section 9(c) Control of Narcotic Substances Act,
1997 and sentenced to suffer 7 years R.I. and to pay fine of Rs.5,00,000/-, in
default of payment of fine whereof appellant was ordered to suffer R.I. for two
years. Benefit of Section 382-B Cr.P.C. was extended to him. Appellant Imtiaz
Javed filed instant appeal against his conviction and sentence. The State / ANF
filed Criminal Revision Application No.106/2012 for enhancement of the sentence
awarded to the appellant Imtiaz Javed. As Appeal and Revision arise out of the
same judgment dated 13.12.2011 recorded by learned trial Court, thus we would
dispose of the same by a single judgment.
2. Brief facts of the prosecution case are
that on 16.01.2007 S.H.O./Inspector Mir Badshah of P.S. ANF Clifton, Karachi
received spy information that appellant Imitaz Javed, international heroin smuggler
along with Tahir Khan alias Beba, Ishtiaq and Javed and employees of main G.P.O.
I.I. Chundrigar Road Karachi were involved in smuggling of huge quantity of
heroin to the U.K. to their associates Naveed and Saboor. It is further alleged
that their partner Hameed has sent huge quantity of heroin powder from Peshawar
to Karachi, which was being shifted by appellant Imtiaz Javed and Tahir Khan
through the land cruiser white colour vehicle from Malir to house of appellant Imtiaz
Javed situated near Grammar School Boat Basin, Clifton, Karachi. After receipt
of such information, by the S.H.O. A.N.F., a raiding party was formed and left
P.S. at 1900 hours and proceeded to the pointed place
and reached at Grammar School near Boat Basin Karachi. At about 2000 hours, said
vehicle appeared on the road. It was stopped by raiding party. Present appellant
was driving vehicle. He tried to drove away but
without any success. He was apprehended. He disclosed his name as Imtiaz Javed.
The private persons standing at the place of arrest of accused were asked by
S.H.O. to witness the recovery, but they refused. Finding no other way, S.H.O.
made P.Cs. Raheem Bux and Muhammad Nasir Khan as mashirs of arrest and
recovery. Vehicle was searched. Appellant was arrested and vehicle was searched
in presence of mashirs. There were 12 shoppers containing two Razai (quilt) covers,
each containing heroin. On opening of quilt/Razai covers ANF officials
recovered 3500 grams heroin powder from 22 covers and 4/4 K.Gs from two covers
total weighing 85 K.Gs. of heroin. Appellant was arrested. Heroin was taken
into possession, mashirnama of arrest and recovery was prepared. Samples weighing 10 grams was drawn from each packet, total
24 samples were taken up. Serial No.1 to 24 were
allowed to the samples and the same were separately sealed. Remaining property
was also sealed separately. Heroin recovered was tacked in the same Razai/quilt
covers and then packed in the white cloth bag and sealed. Thereafter
accused/appellant and case property were brought to the P.S., where F.I.R.
No.01/2007 was lodged on behalf of State on 16.01.2007, under Sections 6, 7, 8,
9, 12, 13, 14, 15 CNSA Act, 1997 at P.S. ANF Clifton.
3. Heroin powder in 24 pockets were sent to the Chemical Examiner at Karachi by S.H.O. P.S.
ANF Clifton on 18.01.2007 for chemical analysis. According to the report of Chemical
Examiner, all the 24 packets contained heroin powder.
4. After usual investigation challan was submitted
against appellant/accused Imtiaz Javed son of Javed Iqbal, Tahir Khan son of
Tawoos Khan, Javed Akhtar son of Shaikh Nabi Jan, Ishtiaq Ahmed son of Imtiaz,
Naveed Ahmed son of Abdul Ghafoor, Muhammad Ishaq, Abdul Hameed, Saboor and
Muhammad Naeem, under Section 9 (C) CNS Act, 1997.
5. Charge against appellant Imtiaz Javed and
others was framed as Ex.20, under Section 6/9 (c) of CNS Act, 1997. To the
charge accused pleaded not guilty and claimed to be tried.
6. At the trial, prosecution examined PC/mashir
Muhammad Nasir Khan as Ex.29, who produced mashirnama as Ex.29/A, memo of
arrest as Ex.29/B, memo of recovery as Ex.29/C, case property as Ex.29-D-1 to
29/D-12. Prosecution examined HC-ANF Rahim Bux as Ex.30. Inspector Mir Badshah
was examined as Ex.33, who produced departure entry as Ex.33-A, copy of F.I.R.
as Ex.33-B, Chemical report as Ex.33-C, memo of search as Ex.33-D.
7. Thereafter, SPP-ANF closed the
prosecution side vide his statement dated 02.06.2011 as Ex.33.
8. The statement of appellant/accused Imtiaz
Javed was recorded under Section 342 Cr.P.C. as Ex.34. He has denied recovery
of the narcotics from his vehicle and stated that he has no concern with the
positive chemical report produced by the prosecution. Appellant, however,
stated that P.Ws. belong to ANF and he was not arrested from the place as shown
by the prosecution. Appellant / accused examined himself on oath as Ex.35. In a
question what else he has to say, the appellant replied that he is innocent and
was arrested form his house and heroin has been foisted upon him. In his
statement on oath, the appellant has stated that he is son of retired Captain of
Pakistan Navy. Heroin has been foisted upon him. On 16.01.2007 after Maghrib
prayer he alongwith his driver Altaf came to Gizri Gate of Navy Housing Scheme
in the vehicle and entered through the gate of the society, where four persons
appeared on two motorcycles in front of vehicle of the appellant and in front
of the security guard and plumber took the appellant. In the cross-examination
he has denied that he has deposed falsely on oath to save his skin. Appellant
Imtiaz Javed examined in his defence, his mother Sabiha Javed and Syed Shoukat
Hussain, security supervisor and Muhammad Ahmad, security guard.
9. We have carefully heard Mr. Hussain Bux
Baloch, learned counsel for the appellant Imtiaz Javed and Mr. Habib Ahmed,
Special Prosecutor for ANF and scanned the entire evidence available on record.
10. Complainant/S.H.O. ANF Mir Badshah has categorically
stated that on 16.01.2007 he was present at P.S. ANF. He received spy
information for apprehending drug smugglers. Inspector alongwith his
subordinate staff left P.S. at 1900 hours by making entry in the roznamcha at
Serial No.10, which he has produced as Ex.33/A and proceeded to the Grammar
School and held nakabandi. In the meanwhile a jeep type vehicle whilte LEXUS
without registration number appeared. It was stopped. Driver did not stop it despite
signal. Police party chased the vehicle and it was stopped near Bar B. Q.
Restaurant. S.H.O. caught hold the appellant Imtiaz Javed,
who was driving the vehicle. Personal search of the vehicle was conducted in
presence of mashirs namely P.Cs. Rahim and Nasir. 12 shoppers blue colour were
recovered containing heroin powder. In all there was 22 packets, each packet
was 3 ˝ K.Gs. total heroin powder was 85
K.Gs. 10 grams were separated from each packet, total 24 grams were separated.
Appellant / accused was arrested in presence of mashirs. Mashirnama of arrest
and recovery was prepared in presence of mashirs. Samples were separately
sealed so also case property. Accused / appellant and case property were
brought to the police station, where F.I.R. was lodged against the accused /
appellant by S.H.O. on behalf of the State vide Crime No.01/2007, under
Sections 6, 7, 8, 9, 12, 13, 14, 15 CNS Act, 1997. 24 packets drawn as samples
were sent to the Chemical Examiner on 18.01.2007 for analysis. In the
cross-examination, Inspector has denied the suggestions that recovery was
foisted upon the appellant / accused Imtiaz Javed.
11. P.C.-ANF Muhammad Nasir Khan has stated
that on 16.01.2007 he was posted at ANF Clifton, Karachi. Inspector Mir Badshah
took him and other staff members in the Government vehicle at 1900 hours from
the ANF P.S. and held nakabandi at Grammar School at Boat Basin. At 2000 hours
one white color Toyota Lexus jeep appeared from Boar Basin side, it was given
signal to stop, but vehicle was not stopped rather driver accelerated it’s speed. ANF staff followed the vehicle and encircled at
Kharadar near Bar B.Q. and it was stopped. Inspector Mir Badshah requested the
private persons present there to act as mashirs but they refused. Thereafter,
Inspector made him as mashir, co-mashir was P.C. Raheem Bux. The person who was
sitting at the driving seat, on enquiry disclosed name as Imtiaz Javed son of Javed
Iqbal, presently resident of Flat No.D-18, Karachi Grammar School, Boat Basin Karachi. Inspector conducted personal search of
the accused Imtiaz Javed and secured two mobile phones Nokia and Sony Ericsson,
MCB Smart Card, PICIC Easy card, mobile indigo, one Cheque of Rs.6,00,000/- of
Bank Al-Habib, US$ 04, Pakistani Currency Rs.500/- etc. Mashir has further
stated that search of the vehicle was conducted in his presence and in presence
of co-mashir. 12 blue colour shopping bags were recovered. On enquiry accused
Imtiaz Javed disclosed that shopping bags contained covers razai/quilt. On
opening of the shopping bags two covers of quilt / razai were recovered, in
each shopping bags, in all there were 24 quilt / razai
covers. In 06 shopping bags colour of the quilt / razai was red, brown and
flowery, in 04 shopping bags the colour of the quilt / razai was brown and
flowery. In 02 shopping bags the blue colour quilt / razai covers recovered. On
checking of the quilt/razai covers ANF found white plastic bags/thelli taped
with white tape and each plastic thelli contained heroin. Heroin powder
recovered from each bag/thelli was weighed. Its weight was 3.500 Kilograms
except two thellies. Heroin powder recovered from two bags/thellies was 08 K.Gs., each thelli was 4 K.Gs heroin powder. Total weight of
recovered heroin powder was 85 K.Gs. Inspector took sample of 10 grams from
each plastic packet / thelli separately. Samples were put in the white plastic
pack separately and packed in Khaki envelope. Samples were given serial No.1 to
24. Remaining heroin was separately sealed and packed in the same manner in
quilt / razai covers in presence of mashirs. Accused Imtiaz Javed was arrested.
Vehicle and keys were taken into possession by the Inspector. Mashirnama of
arrest and recovery was prepared in presence of mashirs. He produced such
mashirnama as Ex.29/A. He further deposed that during interrogation accused
Imtiaz Javed disclosed that Javed, Saboor, Hameed, Naveed, Ishaque and Asif are
his companions and partners in the business. However, it was admitted during
the interrogation that recovered heroin was sent by accused Hameed from
Peshawar and said heroin was to be sent to one Naveed at U.K. In the
cross-examination, mashir has denied suggestion that he has deposed falsely
against the accused / appellant. He has also denied the suggestions that heroin
has been foisted upon the appellant / accused. Mashir has shown ignorance about
the complaint lodged by father of the appellant / accused at P.S. Gizri.
12. Co-mashir P-C Raheem Bux has also deposed
the same facts as narrated by first mashir PC Muhammad Nasir Khan and stated
that S.H.O./Inspector Mir Badshah on spy information had arrested
appellant/accused Imtiaz Javed from his jeep and recovered 85 K.Gs. heroin from 22 quilt/razai covers. 10 grams heroin was drawn
from each packet. There were in all 24 packets. Heroin sample and remaining
case property were sealed separately. He was also cross-examined at length and
denied the suggestions that he has deposed falsely against the appellant /
accused. He has also denied the suggestions that heroin has been foisted upon
the accused/appellant.
13. D.W. Syed Shoukat Hussain Shah has stated
that on 16.01.2007 he was performing duty as Security Supervisor alongwith
Muhammad Ahmad, security guard at the gate of Navy Housing Scheme. Some persons
appeared on motorcycles and intercepted Imtiaz Javed, thereafter 4/5 persons
appeared in double cabin and took away appellant Imtiaz Javed from his land
cruiser. DW Muhammad Ahmad, security guard has also stated same facts.
14. DW-2 Sabiha Javaid, mother of appellant
Imtiaz Javed has stated that on 16.01.2007 she was present at house, it was
evening time, guard of gate of Gizri came to her house
and informed that her son has been taken away by certain persons in plain
clothes. She reported the matter to the Gizri police station and such entry was
made at the police station.
15. Mr. Hussain Bux Baloch,
learned counsel for the appellant has contended that copy of the mashirnama of
arrest was not supplied to the appellant before framing of the charge and it
has caused prejudice to the appellant / accused. It is further contended that
defective charge has been framed. Appellant was misled in defence, retrial may be
ordered. It is also contended that all the incriminating pieces were not put to
the accused/appellant under Section 342 Cr.P.C. for explanation. There are
material contradictions in evidence of prosecution witnesses. Samples of heroin
powder were sent to chemical examiner after 03 days of recovery without
explanation. Lastly, it is argued that prosecution case is doubtful, appellant
is entitled to benefit of doubt. In support of the contentions, he has relied
upon the cases reported as 1. Sarwar Shakir v. The State (1992 M L D 1253), 2. Gul Din v.
The State (2005 AC 1017), 3. Muhammad Ehsan Khan v. The State (1968 P Cr. L J 759), 4.
Rafiq Ahmad v. Police Constabale Saeed Shah and another (1997
M L D 2208), 5. Mst. Nusrat Mai (Tahira Sultana) and
another v. The State (1997 M L D 2869), 6. Muhammad Shafique v. The State (2010 P Cr.
L J 458), 7. Johar Ali and another v. The State (2003 P Cr. L J 680), 8. Sheikh
Muhammad Aslam and another v. The State and 2 others
(1991 M L D 1973), 9. Dur Muhammad alias Duri and
others v. The State (1994 M L D 1493, and 10. Fazal Ellahi v. Muhammad Yaqub and 17 others (2003 Y L R 2897).
16. Mr. Habib Ahmed,
learned Special Prosecutor, A.N.F., argued that prosecution has proved its case
against the appellant. From the vehicle of the appellant 85 Kgs., heroin powder
was recovered, he was solely responsible for
transportation of the narcotics. PWs had no enmity to foist such huge quantity
of heroin powder upon the accused. Sample of heroin powder was sent to chemical
examiner within 72 hours as per rules. There was no delay in dispatch of sample
for chemical analysis. Mr. Habib contended that no major contradiction has been
pointed out. He has further submitted that all the required particulars in the
charge have been mentioned, there was no defect in framing of charge. All the
incriminating pieces of evidence have been put to the appellant, in his
statement recorded under section 342 Cr.PC copies of all documents were
supplied to the appellant before framing of the charge, such receipt is on
record. Trial Court has appreciated the evidence properly. Lastly, it is
contended that sentence of 7 years R.I. awarded by trial Court is inadequate
and in violation of Judgments in the cases of Ghulam Murtaza Vs. the State (PLD
2009 Lahore 362) and Ameer Zeb versus The State (PLD 2012 SC 380).
17. We have carefully scrutinized the entire
prosecution evidence with the assistance of learned counsel for the parties.
Defence evidence has also been examined deeply. Prosecution has succeeded to establish
its case by producing cogent and confidence inspiring evidence for the reasons that
appellant Imtiaz Javed was arrested by S.H.O. Mir Badshah on 16.01.2007 in
presence of mashirs PC-ANF Muhammad Nasir Khan and HC-ANF Rahim Bux at Kharadar
near Bar B. Q. and at that time he was driving vehicle and from the search of
his vehicle 12 shopping bags were recovered which contained two quilt / razai
covers in each shopping bag in all 24 quilt / razai covers were recovered. In
the quilt / razai covers there were plastic bags / thellies containing heroin
powder. Each thelli contained 3˝ K.Gs. heroin except heroin
recovered from two thellies, weighing 4 K.Gs. From each thelli, 10 grams heroin
powder was drawn as sample for sending to chemical examiner. In all 24 samples
were taken from all thellies and separate serial numbers 1 to 24 were
mentioned, total 85 K.Gs. heroin powder was recovered. Samples were separately
sealed. Remaining heroin was sealed separately in the same manner and samples
were sent to the chemical examiner on 18.01.2007. 10 grams sample taken from
each theli would represent the remaining heroin powder in theli. We hold that
in the light of positive report of chemical examiner all the thelies/begs
contained heroin powder. Despite lengthy cross-examination of prosecution
witnesses nothing favourable to the appellant / accused has been brought on
record. It is settled law that evidence of A.N.F. official witnesses in absence
of any enmity, would be relied upon as of public witness. Defence plea appears
to be afterthought as it was not taken at initial stage. Moreover, DW Sabiha
Javed is mother of accused, her evidence is hearsay. Evidence of Syed Shoukat
Shah, would not discredit prosecution case for the reasons that Syed Shoukat
has not proved that he was security guard at the relevant time. Evidence of DW
Muhammad Ali is also not believable for the reasons that he has not produced
appointment letter, despite contention of S.P.P.
18. In this case huge quantity of the heroin
weighing 85 K.Gs. has been recovered from the vehicle of the appellant Imtiaz Javed
and he was sitting on the driving seat at the time of his arrest and recovery
from the vehicle. Report of the chemical examiner was positive. It is
unbelievable that such huge quantity of the heroin could be foisted upon the
appellant / accused particularly in the circumstances when in the defence no
enmity or malafide against the prosecution witnesses have been brought on
record. Evidence of the ANF officials has been examined deeply and their evidence
appears to be trustworthy and confidence inspiring. Absolutely there is no
reason to discard their testimony. No material contradiction has been brought
on record in the evidence. Minor discrepancies in the statement of prosecution
witnesses would not be fatal to prosecution case. It has come in evidence that
Inspector asked the private persons to act as mashirs in this case but they
avoided. It is generally observed that private persons avoid to
act as mashirs in the narcotics cases, to take risk at the hands of
narcotics smugglers. Appellant / accused was sitting on the driving seat of the
vehicle from which 85 K.Gs. heroin was recovered. He
was responsible for the transportation of the narcotics as held by the
Honourable Supreme Court of Pakistan in the case of Kashif Amir versus
The State (P L D 2010 SC 1052), relevant portion is reproduced 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.”
19. As regards to the contention of learned
advocate for appellant, record reflects that copies of statements of
prosecution witnesses were supplied to the accused before framing of charge. Objection
at the time of recording of evidence was not made, therefore, it appears that
neither any prejudice was caused nor failure to justice occasioned nor trial
proceedings could be said to have been conducted illegally in this case.
According to learned counsel for the appellant copy of the mashirnama was
supplied to the appellant / accused after framing of the charge, at the most
same could be terms as irregularity curable under Section 337 Cr.P.C. Appellant
was challaned under Section 9(c) CNS Act, 1997. Charge was framed against the
appellant under section 9(c) of the Control of Narcotics Substances Act, 1997. This
is not a case of misjoinder of charge. No prejudice by framing of the charge
was caused to the appellant during the trial. All the incriminating materials
including positive chemical report were put to the accused in his statement
recorded under Section 342 Cr.P.C. Learned counsel for the appellant could not
point out a piece of the evidence which was not put to the appellant/accused in
his statement under Section 342 Cr.P.C. for explanation, therefore, contention
of learned defence counsel is without any substance.
20. We, therefore, hold that prosecution has proved
its case against the appellant/accused Imtiaz Javed beyond any shadow of doubt.
21. Now the question which requires serious
consideration is the quantum of the sentence awarded to the appellant by the
learned trial Court.
22. Mr. Habib Ahmed, Special Prosecutor ANF has
submitted that sentence of 7 years R.I. under Section 9(c) of the CNS Act, 1997
awarded by the learned trial Court was in violation of mandatory provision of
law.
23. So far sentence is concerned, Section 9 (c)
CNS Act, 1997 is reproduced as under :-
“Section 9(c): death or imprisonment for life, or
imprisonment for a term which may extend 14 years and shall also be liable to
fine which may be upto 1 million rupees, if the quantity; or narcotic drug
psychotropic substance or controlled substance exceeds the limits specified in
clause (b).
Provided that if quantity exceeds ten kilogram the punishment shall
not be less than imprisonment for life.”
24. This Court while exercising the revisional and
supervisory jurisdiction may examine the correctness, legality or propriety of
any finding or sentence of Court subordinate to it, when interest of justice so
requires and can interfere for correction of manifest illegality or prevention
of gross miscarriage of justice. In the instant case, learned
trial Court under section 9(c) of the Control of Narcotics Substances Act, 1997
upon recovery of 85 kilograms heroin powder awarded 07 years R.I. to the
appellant which was totally inappropriate and in violation of sentence
prescribed in section 9(c) of the Control of Narcotics Substances Act, 1997.
In narcotic cases, sentencing policy has been provided by the Lahore High Court
Lahore in the case of Ghulam Murtaza and another v. The State (P L D 2009
Lahore 362), which has been approved by the Honourable Supreme Court of
Pakistan in the case of Ameer Zeb versus The State (P L D 2012 SC
380). According to the sentencing policy prescribed in the aforesaid judgments,
sentence for the recovery of more than 10 K.Gs. of heroin powder is imprisonment
for life or death and fine of Rs.300,000/- or in default S.I. for one year and six
months. As we have already held that sentence awarded by the learned trial
Court was inadequate and in violation of law and above cited judgments. Trial
Judge though while awarding lesser punishment has reasoned out that
notwithstanding the fact that the thelies containing Heroin Powder were
weighing 3-˝ Kg / 4 Kg but since the
sample drawn from each thely was only 10 grams therefore, such sample would
represent only one kilogram of Heroine Powder, even if this formula is applied,
though which is totally incorrect and has been introduced out of the blues,
still such sample represented 24 Kg of Heroin Powder and even then the sentence
of 7 years was not justified. The reasons for awarding lesser punishment were
totally dishonest and for extraneous consideration for which we have already
recommended disciplinary proceedings. Therefore, while dismissing the appeal
filed by appellant Imtiaz Javed, we enhance the sentence of appellant under
section 9(c) Control of Narcotics Substances Act, 1997 awarded by the trial
Court from 07 years R.I. to imprisonment for life and to pay fine of Rs.300,000/- or in case of default in payment of fine amount, S.I.
for 1 year and six months more. We have taken lenient view and did not award
death sentence to appellant for the reason that it is not brought on record
that accused is previous convict in such type of offence. Appellant Imtiaz Javed
is extended benefit of Section 382-B Cr.P.C. Appellant / accused Imtiaz Javed is
produced in custody in another side. His bail bond stands cancelled and surety
is hereby discharged and he is remanded to jail to serve out said sentence
awarded to him. Consequently, appeal is dismissed and Criminal Revision Application
is allowed.
JUDGE
JUDGE
Gulsher/PA