IN THE HIGH COURT OF SINDH AT KARACHI
Criminal
Appeal No.310 of 2009
Present: Mr.
Justice Sajjad Ali Shah
Mr. Justice Naimatullah
Phulpoto
Appellant: Behram
Khan through Mr. Abdul Razzak
Advocate.
Respondent: The State through Mr. Khadim Hussain
Deputy Prosecutor General Sindh.
Date of
Hearing: 29.01.2013 .
J U D G M E N T
NAIMATULLAH
PHULPOTO, J.- Appellant
Behram Khan was tried by learned Sessions Judge/Judge
Special Court, Control of Narcotic Substances, Mirpurkhas
in Special Case No.32 of 2007 under Section 9 (c) of the Control of Narcotic
Substances Act, 1997. Learned Special Judge convicted appellant under Section
9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to
imprisonment for life and to pay fine of Rs.100,000/- (Rupees One Lac), in case
of default in the payment thereof, appellant was directed to suffer S.I for six
months more. Benefit of Section 382-B Cr.P.C was also
extended to the appellant.
2. Brief
facts of the prosecution case, as disclosed in the FIR are that on 20.07.2007,
Excise Inspector Javed Karim
Mehar, left office on the directions of Chaudhry Ghulam Ahmed Arain, In-charge Divisional Special Squad Hyderabad Region
along with A.E.T.O Abdul Jabbar and subordinate staff
ED Sikandar Ali, ED Allah Warayo,
ECs Mohammad Iqbal, Nisar
Ahmed and others in the government vehicle vide Roznamcha
Entry No.4 at 1320 hours for patrolling towards Mirpurkhas.
When at 1450 hours, Excise officials reached at Chandni
Chowk, Mirpurkhas, where
they received spy information that present appellant was standing at Jarwari Shakh Bus Stop Mirwah road and he was carrying black coloured
plastic bag of Charas. On such information, Excise
party proceeded to the pointed place and saw the present appellant standing
there. Excise Inspector enquired the name of the appellant to which he
disclosed his name as Behram Khan son
of Adam Khan Ahmed Zai r/o Tariqabad
Mohallah, Peshawar, at present Gulshan
Hotel, Station Road, Hyderabad. It is stated in the FIR by Excise Inspector
that due to the non-availability of private mashirs,
he made ED Sikandar Ali and ED Allah Warayo as mahsirs, secured
plastic bag from the possession of the appellant. It was opened,
same contained 18 packets of Charas. From the front
pocket of the shirt of the appellant, cash of Rs.380/- was also recovered. From
each packet of one Kilogram, 10 grams of the Charas were
taken as sample for sending the same to the Chemical Examiner. Samples were
separately sealed. Remaining substance was also sealed in presence of the mashirs. During the interrogation, appellant disclosed that
he had brought Charas from Peshawar for selling
purpose. Mashirnama of arrest and recovery was
prepared in presence of mashirs. Thereafter,
appellant and case property were brought to the Excise
Police Station, where FIR against the appellant vide Crime No.14/2007 under
Section 9(c) of the Control of Narcotic Substances Act, 1997 was lodged on
behalf of State. During investigation, 161 Cr.P.C
statements of P.Ws were recorded. Samples were sent to the Chemical Examiner for
analysis and Report. Positive report was received. On the conclusion of the
investigation, Challan was submitted against the
appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997.
3. Learned
Sessions Judge/Judge Special Court, Control of Narcotic Substances, Mirpurkhas, framed charge against the appellant under
Section 9(c) of the Control of Narcotic Substances Act, 1997 at Ex.2. Appellant
met the charge with denial. Prosecution in order to substantiate the charge, examined the following witnesses:-
(1)
Mashir
ED Sikandar Ali at Ex.4, who produced mashirnama of arrest and recovery at Ex.5.
(2)
Complainant Excise Inspector Javed Karim Mehar
at Ex.8, who produced FIR, Roznamcha entries No.4 and
6 and report of chemical examiner at Ex.8/A to Ex.8/C.
Prosecution
closed the side.
4. Statement
of appellant under Section 342 Cr.P.C was recorded at
Ex.11. Appellant denied allegations and stated that 18 Kgs
of Charas have been foisted upon him. Positive
chemical report has also been managed and P.Ws are
interested. Appellant has examined himself on oath in disproof of prosecution
allegations. Appellant wanted to examine in his defence
witnesses namely Abdul Ghafoor, Shahid
Mehar, Mushtaque Mehar, SHO of P.S Taluka, Mirpurkhas and Haibat Khan before
the Trial Court. However, appellant has examined only D.W. Muhammad Mushtaque Hussain and Shahid Hussain Mehar before the Trial Court.
5. Learned
Sessions Judge/Special Judge Control of Narcotic Substances, after assessment
of the evidence, convicted appellant as stated above.
6. Mr.
Abdul Razzak learned Advocate for the appellant
mainly contended that no arrival and Roznamcha
entries have been produced to satisfy the Court that Excise officials had
actually left for patrolling. It is contended that private persons present in
the vicinity were not examined though it was busy place. It is also argued that
cash of Rs. 380/- was recovered from the pocket of
the appellant and he belongs to Peshawar and the prosecution story is
unbelievable and unnatural. It is also submitted that the Excise official who
took sample to the Chemical Examiner has not been examined. Charas
was wrapped in plastic bag and wrappers were not produced before the Trial
Court. Attested copy of the positive chemical report has been placed on record.
Defence evidence was not considered by the Trial Court. It is submitted that
prosecution case is highly doubtful, there are several circumstances in the
prosecution case, which create reasonable doubt and a single circumstance
creating reasonable doubt in the prosecution case is sufficient to extend
benefit of doubt to the appellant. Lastly, he argued that in case conviction is
maintained, sentence of the appellant may be reduced to that of already undergone
as appellant is the father of four children and the sole supporter of the
family.
7. Mr. Khadim Hussain learned DPG argued
that evidence of the Excise officials is confidence inspiring and trustworthy.
Excise officials had no motive to foist such huge quantity of Charas upon the appellant and samples of the Charas were sent to the Chemical Examiner within 24 hours.
Learned DPG has further submitted that arrival and departure entries have been
produced in the evidence and production of attested copy of positive report of
the Chemical Examiner was not questioned seriously before the trial Court,
however, he recorded no objection in case conviction is maintained and sentence
of life imprisonment is reduced to that of already undergone.
8. We
have carefully scrutinized/scanned the evidence brought on record by the
prosecution. Complainant Javed Karim
Mehar, Excise Inspector has deposed that on 20.07.2007,
he left office along with his subordinate staff for patrolling vide Roznamcha entry 4 at 1320
hours for patrolling. At 1450 hours he received spy information that present
appellant was standing at Jarwari Shakh
and was carrying black coloured plastic bag
containing Charas. He has deposed that they proceeded
to the pointed place, arrested the appellant and recovered from his possession plastic
bag containing 18 packets of Charas and cash of Rs.380/-.
Plastic bag was opened, each packet was of 1 KG, 10
grams were separated from each packet for sending to the Chemical Examiner.
Samples and remaining substance were separately sealed in presence of the mashirs namely ED Sikandar Ali
and ED Allah Warayo. Thereafter, case was registered against
the appellant on behalf of state under Section 9(c) of the Control of Narcotic
Substances Act, 1997. Samples were sent to the Chemical Examiner for the Report
and the positive Report was received. Despite lengthy cross-examination nothing
favourable to the appellant has been brought on
record. Complainant had denied the suggestion that Charas
have been foisted upon the appellant and he had demanded illegal gratification
from the appellant.
9. E.D.
Sikander Ali has deposed that he had left along with
complainant and other staff members for patrolling. On spy information, present
appellant was arrested from Jarwari Shakh. A plastic bag was recovered from him, it contained
18 packets of Charas and cash of Rs.380/-. Weight of
each packet was 1 KG. 10 grams were taken as sample from each packet by the
complainant for sending the same to the Chemical Examiner. Mashirnama
of arrest and recovery was prepared in his presence and in presence of co-mashir ED Allah Warayo. In the
cross-examination, he had denied the suggestion that place of arrest of
appellant is busy road. He has also denied the suggestion that Charas was not sealed at the spot.
10. Appellant
examined himself on oath in disproof of prosecution allegations and stated that
he was arrested near Railway Station Hyderabad. After his arrest, raid was
conducted on the orders of learned Sessions Judge. In the cross-examination
appellant denied the suggestion that he has given false evidence to save his
skin. D.W. Mushtaq Hussain
has deposed that he runs hotel at Jarwari Shakh. On 20.07.2007 no such incident had happened with the
appellant. DW-Shahid Hussain
Mehar has also stated that he runs cabin at Jarwari Shakh, where such type of
incident had not occurred.
11. From
the minute examination of the evidence as discussed above, it appears that
evidence of Javed Karim Mehar is straightforward and confidence inspiring. His
evidence is supported by mashir of recovery. Despite
lengthy cross-examination of both prosecution witnesses, not a single major
contradiction came on record. Attested copies of departure entries have also
been produced before the Trial Court in order to show that Excise officils had actually left for the purpose of patrolling on
the relevant date. It is settled law that evidence of Excise officials is as
good as that of any other person until and unless malafide
is brought on record against them, but in this case no specific malafide has been pointed out. Evidence of Excise officials
is corroborated by the positive Chemical Report. Charas
was recovered from the possession of the appellant on 20.07.2007. On 21.07.2007,
samples were sent to the Chemical Examiner, Karachi for analysis. Positive
report has been placed on record. Mere production of attested copy of positive
chemical report in the evidence would not be fatal to the prosecution case. Therefore,
we find that prosecution has succeeded to prove its case against the appellant
and Trial Court has rightly appreciated the evidence brought on record.
12. For
the above stated reasons, we dismiss this appeal by maintaining conviction.
However, keeping in view the submission of learned counsel that appellant is
father of four children, sole supporter of his family as per jail roll issued
by Superintendent Central Prison Karachi dated 28.01.2013, appellant has served
sentence of 15 years, 04 months and 05 days including remissions. Therefore,
sentence of life imprisonment is reduced to one already undergone and fine is
also remitted.
13. These
are the reasons, for the short order announced by us on 29.01.2013.
JUDGE
JUDGE