HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.195 of 2013

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant: Chaudhry Qasim son of Ghulam Muhammad through Mr. Abdul Razzak, advocate

Respondent: The State through Mr. Ashfaq Rafiq Janjua, Assistant Attorney General, assisted by Mr. Ashiq Ali Anwar Rana, Special Prosecutor Customs.

Date of Hearing : 05.03.2018

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Chaudhry Qasim son of Ghulam Muhammad appellant was tried along with Shahryar (since acquitted) by learned Judge, Special Court-II (CNS) Karachi in Special Case No.585 of 2012. By judgment dated 19.06.2013, appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 10 years R.I. and to pay fine of Rs.100,000/-, in case of default in payment of fine, he was ordered to suffer R.I. for one year. Benefit of section 382-B, Cr.PC was extended to the accused.

2. FIR was lodged against accused on 18.09.2012 under section 9(c) of the Control of Narcotic Substances Act, 1997. After usual investigation, challan was submitted against accused under the above referred section.

3. Learned trial court framed the charge against the accused under Section 6/9(c) of Control of Narcotic Substances Act, 1997 at Ex.5. Accused pleaded not guilty and claimed to be tried.

4. At trial, the prosecution in order to substantiate the charge, examined four (4) PWs. Thereafter, prosecution side was closed.

5. Statement of accused was recorded under Section 342 Cr.P.C, in which prosecution allegations were denied. Accused raised plea that he has been falsely implicated in this case. Accused did not examine himself on oath in disproof of prosecution allegations.

6. Trial Court after hearing the learned Counsel for the parties,
by judgment dated 19.06.2013, convicted the appellant under Section 9(c) of Control of Narcotic Substances, 1997 and sentenced as mentioned above.

7. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 19.06.2013 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Mr. Ajab Khan Khattak, learned advocate for appellant Chaudhry Qasim, after arguing the appeal at some length did not press the same on merits but submitted that quantum of sentence may be determined according to the quantity of the recovered narcotic substances. According to the counsel for the appellant, total 2590 grams heroin has been recovered from the accused. In support of his submissions, he relied upon the cases of Ghulam Murtaza and another versus The State (PLD 2009 Lahore 362) and Ameerzeb versus the State (PLD 2012 Supreme Court 380).

9. Mr. Ashfaq Rafiq Janjua, learned Assistant Attorney General for Pakistan, assisted by Mr. Ashiq Ali Anwar Rana, Special Prosecutor for Customs, pointed out that 2590 grams heroin was recovered from accused, however, recorded no objection for deciding the quantum of the sentences in the light of above mentioned case law.

10. According to the prosecution case, on 17.09.2012 at 2232 hours, at International Departure Hall, Karachi Airport, customs authorities recovered heroin powder from accused, total 2590 grams. Trial court convicted appellant Chaudhry Qasim under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 10 years R.I. and to pay fine of Rs.100,000/-, in case of default in payment of fine, he was ordered to suffer R.I. for one year. In the case of Ghulam Murtaza and others (PLD 2009 Lahore 362) in the case of recovery of heroin exceeding 2Kgs and upto 3Kgs, sentence of 7 years R.I. and fine of Rs.50,000/- or in default, R.I. for 7 months has been provided. In the case of Ameezeb (PLD 2012 Supreme Court 380) sentencing policy is endorsed by the Honourable Supreme Court.

11. In the view of above, conviction recorded by the trial court is maintained and the appeal is dismissed as not pressed. So far as sentence is concerned, the sentence awarded to appellant Chaudhry Qasim vide judgment dated 19.06.2013 is modified/altered to 7 years R.I. and to pay fine of Rs.50,000/-, in case of default in payment of fine S.I. for 7 months more. Appellant shall be entitled to the benefit of section 382-B, Cr.PC.

12. In the view of above, appeal is disposed of in the above terms.

J U D G E

Gulsher/PS

2. Brief facts of the prosecution case as reflected from the judgment of the trial Court are that on the intervening night of 17^th/18^th September 2012, Complainant’s SPO S. M. Irfan Ali of Customs (Preventive), Karachi while performing his duty at International Departure Hall, JIAP, Karachi received a credible information that attempt would be made to smuggle contraband heroin powder out of Pakistan to China with the modality that members of functionaries operating at JIAP, Karachi would deliver heroin stuffed in packets/shoes to a passenger namely Chaudhry Qasim, traveling to Chengdu (China) by Air China Airlines, Flight No.CA-946 from JIAP, Karachi. Complainant’s SPO S. M. Irfan Ali while conducting spot inquiries, disclosed that the passenger described in the information had already completed airlines briefing formalities at 2034 hours and was issued boarding pass for Seat No.38L on the said date. A team of customs officers immediately rushed to International Departure Satellite and with the help of Air China Airlines located and identified the said passenger. Upon scrutiny of his travel documents, his identity was revealed as Chaudhry Qasim son of Ghulam Muhammad. Luggage of said passenger, comprising of one black trolley suitcase and one brown Shuaitelang brand hand carry bag was examined in presence of two witnesses SPO Israr Ahmed and SPO Wasim A. Shah and recovered two packets from Shuaitelang brand hand carry bag, containing off-white heroin powder made up of polythene and plastic adhesive tapes molded in shape of shoes ‘insole’, which weighed 660 grams and 670 grams, respectively. Subsequent to this recovery, black pair of shoes worn by passenger/accused Chaudhry Qasim were also examined in presence of said witnesses which led to recovery of other two identical heroin packets which were fitted in specially made cavities of the shoes and weighed 620 grams and 640 grams, respectively, total recovered heroin powder weighed 2590 grams. The recovered heroine powder was instantly tested with a testing kit which gave a positive inference for heroin. All the contraband heroin powder recovered was seized along with the containers thereof and passenger’s travelling documents. Four respective samples, marked as ‘A’, ‘B’, ‘C’ and ‘D’, each weighing 5 grams, of the seized heroin powder were drawn in triplicate and sealed under the signatures of said witnesses and mashirnama to this effect was prepared on the spot which signed by the said witnesses. Accused Chaudhry Qasim was arrested and served with a notice of arrest and got off-loaded from FIA/Immigration authorities. During preliminary investigation, arrested accused Chaudhry Qasim disclosed that heroin packets and shoes were delivered to him inside Departure Satellite through a person working at the airport. Thereafter FIR being Crime No.DEC-16/2012-JIAP was lodged on 18.09.2012 under section 6/9(c) read with section 14/15 of the Control of Narcotic Substances Act, 1997. During investigation, it revealed that co-accused Shaharyar Traffic Assistant of M/s. Royal Airport Services delivered the heroin packets concealed in the shoes to principal accused Chaudhry Qasim and absconding accused Muhammad Iqbal son of Makbali Khan is their associate. On 02.10.2012 SPO Syed Azhar Mehdi, IO has filed final report under section 173 Cr.PC in which accused Chaudhry Qasim as shown in custody while co-accused persons Shaharyar and Muhammad Iqbal being shown as absconding accused.