HIGH COURT OF SINDH AT KARACHI

Criminal Appeals Nos.33 and 34 of 2012

          Present:      Sajjad Ali Shah, J.

                              Naimatullah Phulpoto, J.

 

Appellants:                      Farooq Khan, Haroot Khan and Maroof Khan through Mr. Ghulam Rasool Mangi, Advocate

 

Respondent:                   The State through Mr. Khadim Hussain Khuharo, Deputy Prosecutor General Sindh.

 

Date of hearing:              09.05.2013

 

Date of announcement:   __.05.2013

 

JUDGMENT

 

NAIMATULLAH PHULPOTO,J.- Appellants Maroof Khan, Farooq Khan and Haroot Khan all sons of Yaqoob Khan, Sabz Ali alias Malanga son of  Yaqoob Khan and Irfan Khan son of Farooq Khan were tried by learned Special Judge-II, CNS, Karachi in Special Case No.73/2006 (the State versus Maroof Khan and others) under section 9(c) of the Control of Narcotics Substances Act, 1997. After full-fledged trial, applicants/accused Maroof Khan, Farooq Khan and Haroot Khan were convicted under section 9(c) Control of Narcotics Substances Act, 1997, and sentenced to imprisonment for life and to pay fine of Rs.1,000,000/- each and in case of default to suffer R.I. for 05 years more. Benefit of section 382-B Cr.PC was extended to the appellants/accused. Appellants/accused Farooq Khan and Haroot Khan were remanded to jail to serve out the sentence awarded to them. However, accused Maroof Khan after announcement of the judgment slipped away from the Court premises. Appellants/accused Farooq Khan and Haroot Khan filed Appeal No.34/2012. Accused Maroof Khan also filed Appeal No.33/2012. He was taken into custody and was remanded to the Jail. By this single judgment we would dispose of the aforesaid appeals.

 

2.       Brief facts of the prosecution case as disclosed in the F.I.R. are that on 04.04.2006 complainant/SHO Tariq Raheem Khattak of P.S. Mehmoodabad left the police station along with subordinate staff, namely, SIPs Muhamamd Rafiq and Chaudhry Muhammad Rasheed and P.Cs. Javed and Ghulam Arif, Shadab and Shakeel for patrolling in the government vehicle. During patrolling SHO received spy information that Appellant/accused Farooq Khan, a narcotic dealer and his brothers, Haroot Khan, Maroof Khan were transporting huge quantity of charas in the Jeep bearing registration No.E-0296 from house/Kalapul to Parsi Gate, Karachi. After receipt of such information police party proceeded to the pointed police and reached there at 0413 hours. Nakabandi was held, after sometime, said Jeep appeared from Kalapul, it was stopped by police, appellants were inquired about their names and addresses, to which they disclosed their names, SHO conducted personal search of accused Maroof Khan son of Yaqoob Khan in presence of mashirs. During his personal search one T.T. pistol without number containing magazine with 4 live rounds were recovered for which he had no license. He was driver of vehicle. Another accused who was sitting besides driver disclosed his name as Farooq Khan son of Yaqoob Khan, his personal search was also conducted, one T.T. pistol without number containing 4 live bullets in the magazine and cash of Rs.1200/- were recovered from his possession. He had also no license for the weapon carried by him. Third accused person was sitting on the rate seat of the Jeep, on inquiry he disclosed his name as Haroot Khan son of Yaqoob Khan, his personal search was also conducted by the SHO in presence of the mashirs and railway card No.K-10027 and cash of Rs.700/- were recovered from his possession. Jeep was also searched in presence of mashirs. From the front side of the jeep besides diver seat two bags “katas” one having white/read colour patties and another blue coloured were recovered. Both the bags contained 23/23 bags of charas on which words “PRESIOENTTI KHAVI” were written. Weight of the bags of charas came to 28/28 Kgs. On further search of the Jeep, 5 bags “Kattas” containing 23/23, 19, 14 and 18 total 97 bags of charas were recovered on which words “PRESIOENTTI KHAVI” were written. On weighment of five bags 28/28 Kgs., 23 Kgs, 17Kgs and 22 Kgs, total 118 Kgs. of charas were recovered and from two bags “katas” of blue colour 23 packets and 15 packets of charas were recovered, weighing 28 Kgs and 18 Kgs respectively, total 46 Kgs. Grand total 220 Kgs. of charas were recovered from the jeep. On extensive search of the vehicle two number plates of the vehicle were also recovered. One packet of charas/rods weighing 1250 grams, consisting of 100 rods were sealed for sending to the Chemical Examiner for analysis. Remaining packets of the charas were separately sealed at spot. It is stated that due to non-availability of the private witnesses complainant prepared mashirnama of arrest and recovery of charas in presence of mashirs, namely, SIP Muhammad Rafiq and SIP Chaudhry Muhammad Rasheed. Vehicle was seized, Appellants/accused and case property were brought to the police station where SHO Tariq Raheem Khattak lodged F.I.R. against Appellants/accused on behalf of the State on 04.04.2006 vide Crime No.97/2006 under section 9(c) of the Control of Narcotics Substances Act, 1997.

 

3.       During investigation, Appellants/accused Farooq Khan disclosed that charas has been concealed by him in the house situated at Hazara Colony, Kalapul, Karachi and on his pointation 8.750 Kgs charas and 01 Kg heroine powder were recovered and separate F.I.R. bearing Crime No.84/2006 under section 9(c) Control of Narcotics Substances Act, 1997 was lodged against Farooq Khan. During investigation further it was revealed that charas was supplied to them by one Khan son of Abdul Aziz and heroine powder was provided to the appellant Farooq Khan by one Wali Khan son of Abdul Hadi and contraband narcotics were sold to Farooq Khan by Sabz Ali and one Irfan Khan both sons of Yaqoob Khan through their munshi Hayyat Khan. After usual investigation challan was submitted against the Appellants/accused Maroof Khan, Farooq Khan and Haroot Khan, while accused Sabz Ali alias Malanga, Irfan Khan, Hayyat Khan Kaji son of Abdul Aziz and Wali Khan were shown as absconder. Subsequently, accused Sabz Ali alias Malanga was arrested and accused Irfan Khan surrendered before the trial Court.

 

4.       Charge against the accused persons namely Maroot Khan, Farooq Khan, Haroot Khan and Sabz Ali alias Malanga and Irfan Khan was framed by trial Court on 10.02.2007 under section 9(c) of the Control of Narcotics Substances Act, 1997 at Ex-7. To the charge, appellants/accused pleaded not guilty and claimed to be tried.

 

5.       Record reflects that accused Sabz Ali alias Malanga and Irfan Khan were acquitted by the trial Court under section 265-K Cr.PC vide order dated 10.04.2008 and 04.08.2008, respectively.

6.       In order to substantiate the charge against the appellants/accused, prosecution examined the following witnesses:

1.       PW-1 Muhammad Rasheed Ex-1

2.       PW-2 Tariq Rahim Ex-18.

3.       PW-3 Muzaffar Ahmed, Ex-19

 

7.       Statement of Appellants/accused were recorded under section 342 Cr.PC in which they have claimed false implication in the case and denied the prosecution allegations. Recovery of the charas has been denied. Regarding positive report of chemical examiner it is stated that Appellants/accused have no concern whatsoever with report and PWs have deposed against them as they are subordinates to DSP Chaudhry Bakhtiar. Appellants/accused stated that they were arrested from Karachi Airport. Nothing was recovered from their possession. Appellants/accused did not examine themselves on oath in disproof of prosecution allegation. No evidence was led in defence. 

 

8.       Learned Special Judge-II, CNS Karachi after assessment of evidence found appellants guilty, convicted and sentenced them as described above.

 

9.       We have carefully heard Mr. Ghulam Rasool Mangi, learned advocate for the appellant and Mr. Khadim Hussain Khuharo, learned Deputy Prosecutor General Sindh.

 

10.     From perusal of prosecution evidence, it transpires that SHO Tariq Raheem received spy information on 04.04.2006 that Farooq Khan and his brother were transporting huge quantity of charas in Jeep registration      No.E-0296 from Kalapul to Parsi Gate, Karachi. After receipt of such information, SHO along with his subordinate staff namely SIPs Rasheed and Rafi, PCs Javed and other officials left the police station at 0400 hours and reached at Parsi Gate Mehmoodabad. Police officials held Nakabandi at 0405 hours. At 0430 hours a Jeep appeared on the road, it was stopped in which three accused persons were sitting. SHO inquired their names in presence of mashirs, the person who was sitting on the driver seat disclosed his name as Maroof Khan and another accused sitting besides the driver disclosed his name as Farooq Khan and the third one sitting on rear seat disclosed his name as Haroot Khan. SHO conducted personal search of all accused persons in presence of mashirs and recovered one pistol and 4 live bullets from accused Maroof Khan, one pistol, 4 life bullets and cash Rs.1200/- were also recovered from personal search of accused Farooq Khan and from Haroot Khan one railway service card and cash of Rs.750/- were recovered. On the search of Jeep two plastic bags were recovered lying on the foot mat of front seat and 7 plastic bags were recovered under the rear seat. The said 9 plastic bags contained charas in the shape of rods, total 181 packets, weighing 220 Kgs. One packet of charas in the shape of rods was separated for chemical analysis and remaining bags were separately sealed at spot in presence of mashirs. All the three accused were arrested and mashirnama of arrest and recovery was prepared at the spot. Accused, narcotics substance, weapons and jeep were brought to the police station where SHO lodged F.I.R. against the appellants under section 9(c) of the Control of Narcotics Substances Act, 1997 on behalf of State and separate cases under section 13(d) of the Arms Ordinance, 1965 were also registered. After registration of FIRs investigation was handed over to SIP Muzafar Ahmed. In the cross-examination SHO/Complainant had admitted that out of 181 packets he had only sealed one packet of charas for sending to the chemical examiner. He has further relied in the cross-examination that he cannot say that 180 packets of charas contained charas or not. However, he has denied the suggestion that he was deposing falsely against the accused.

 

11.     PW/Mashir SIP Muhammad Rasheed has stated that on 03.04.2006 he was on the patrolling duty along with SHO Tariq and other staff members. During patrolling SHO Tariq Rahim received spy information that appellant Farooq Khan and others were coming from Kalapul to Parsi Gate in Jeep, carrying huge quantity of charas police party held Nakabandi at Parsi Gate. One Jeep E-0296 appeared, it was stopped, SHO inquired the name of the person sitting on driving seat, he disclosed his name as Maroof Khan, SHO  by making Abdul Rasheed as mashir and    co-mashir SIP Muhammad Rafiq, conducted person search of Maroof Khan and recovered one pistol and 4 live bullets, on personal search of accused Farooq Khan recovered one pistol, 4 live bullets and cash of Rs.1200/- and third person sitting on the rear seat disclosed name as Haroot Khan. SHO recovered two plastic bags from the front seat and 7 plastic bags of charas from back seats of the jeep and two number plates of the vehicle bearing No.Z-9631. SHO arrested all accused persons in presence of mashirs and took charas in possession. Charas was weighed. There were total 181 packets of charas in the bags weighing 220 Kgs., each packet of the charas contained 100 rods of charas and one packet was sent to the chemical examiner for analysis. Remaining packets were sealed separately. In the cross-examination, he has denied the suggestion that he was deposing falsely at the instance of SHO.

 

12.     SIP PW Muzafar Ali has investigated the case and received F.I.R. No.79/2009. He received memo of arrest and recovery. He recorded 161 Cr.PC statements of the prosecution witnesses and interrogated accused. On 13.04.2006, he deposited the sample with the chemical examiner and produced positive chemical report Ex-19/A. He further deposed that during investigation on the disclosure of accused Farooq Khan he lodged another F.I.R. against accused bearing No.84/2006 under section 9(c) Control of Narcotics Substances Act, 1997 against accused Farooq Khan, received positive chemical report and on the conclusion of investigation he submitted challan against present accused. He has also denied the suggestion that he has deposed falsely against the accused at the instance of DSP Bakhtawar. He has also denied the suggestion that accused were arrested from Karachi Airport.

 

13.     Mr. Ghulam Rasool Mangi, learned advocate for the appellants contended that there are major contradictions in the evidence of complainant and mashirs on the point of place of spy information. It is further contended that all the PWs are police officials they had enmity with the accused persons, no independent person of the locality has been examined by the prosecution. Lastly, it is submitted that out of 181 packets of charas one packet of the charas weighing 1250 grams was sent to the Chemical Examiner for analysis and conviction of the appellants for the whole illicit narcotics recovered from the vehicle could not be attributed to the appellants. Mr. Mangi submitted that in case prosecution story is believed the appellants may be convicted and sentenced only for one packet containing 1250 grams charas which was sent to the Chemical Examiner. In support of his contention, he relied upon the case of Ameer Zeb vs. the State PLD 2012 SC 380.

14.     Mr. Khadim Hussain Khuharo, D.P.G., argued that appellant Maroof Khan was sitting on the driving seat of the vehicle, he would be responsible for the transportation of the narcotics along with others, having knowledge of the charas in vehicle. He has further submitted that evidence of police officials is as good as that of any private person, no enmity against the police officials has been brought on record. He has also submitted that contradiction, as highlighted by the defence counsel is minor in nature, the same would not cut the root of the prosecution case. He has submitted that prosecution has proved its case against the appellants, report of chemical examiner was also positive and prayed for dismissal of appeals.

 

15.     We have carefully scrutinized the prosecution evidence with the assistance of the learned counsel for the parties. Complainant/S.H.O. has stated that on spy information, he along with staff held nakabandi on 04.04.2006 at 0400 hours and arrested appellants Maroof Khan, Farooq Khan and Haroot Khan from Jeep No.E-029. Appellant Maroof Khan was sitting on driving seat, Farooq Khan was sitting besides the driver and Haroot Khan was sitting on the rear seat of the jeep. On search of vehicle recovered 9 plastic bags containing 181 packets of charas in the shape of rods, there were 100 rods in each packet. S.H.O. and mashirs have stated that one packet out of 181 was separated for the purpose of sample and it was sealed for sending to the Chemical Examiner for analysis and rest packets were separately sealed. Mashir Muhammad Rasheed has also supported the evidence of investigation officer and stated that he was made as mashir of the arrest and recovery. One packet, out of 181 weighing 1250 grams was separately sealed for sending to the Chemical Examiner. Investigation Officer has also given the same evidence on the above mentioned material points and stated that he has sent one packet to the Chemical Examiner and received positive report. Evidence of the police officials is trustworthy and confidence inspiring for the reason that no enmity has been specifically alleged against police officials to discredit their testimony. Contradiction as highlighted by the learned defence counsel that S.H.O. has stated that he received spy information at police station and mashir have stated that S.H.O. received spy information during patrolling, such contradiction is no contradiction in the eyes of law. Moreover, in this case spy information was received by S.H.O., mashir had no concern with it, therefore, no weight can be attached to such contradiction. Even otherwise, such minor contradiction would not affect prosecution case. Moreover, evidence of the police officials is corroborated by the positive chemical report. It is not the defence of the accused that report of the chemical examiner has been managed. It is a settled law that a person who is on the driving seat of the vehicle would be held responsible for the transportation of the narcotics as held in the case of Kashif Amir versus the State (PLD 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.”

 

16.     We, therefore, hold that prosecution has proved its case against all the appellants beyond any shadow of doubt for the reason that they were arrested from jeep and charas was recovered from jeep. No mala fide/enmity against police officials has been brought on record.

 

17.     Now the question which requires serious consideration, is the quantum of sentence. Complainant/S.H.O. Tariq Raheem has stated that out of 9 plastic bags, 181 packets weighing 220 Kgs were recovered. One packet of charas in the shape of rods was separated and it was sent to the Chemical Examiner for analysis. Weight of packet was 1250 grams. Chemical Examiner in his report Ex-19/A has mentioned that he had received one packet on 12.04.2006, containing 1250 grams of charas and report was positive. Lahore High Court in the case of Ghulam Murtaza versus the State (PLD 2009 Lahore 362), which has been approved by the Honourable Supreme Court in the case of Amir Zaib versus the State (PLD 2012 SC 380) and in the case of Fareedullah versus The State (2013 SCMR 302) has provided a schedule for awarding the sentence according to the recovery of illicit narcotics. In the instant case, 1250 grams were sent to the Chemical Examiner for analysis, sample was not drawn from other packets as clearly stated by complainant/S.H.O. it has also been clearly deposed by the I.O. in his cross-examination as under:-

“It is correct to suggest that out of 181 packets I had only sealed one packet of charas for chemical analysis. It is correct to suggest that 180 packets produced before this Court are in packed condition but I cannot say that if said 180 packets containing charas or not.”

 

          Mashir SI Muhammad Rasheed has also clearly deposed that one packet was sent to the Chemical Examiner for analysis

 

18.     The record reflects that recovered packets of charas were 181, weighing 220 Kgs., out of which one packet of charas weighing 1250 grams was sent to the Chemical Examiner for analysis and report was received in positive. This admitted fact on the face of it attracts the ratio of the law declared by Honourable Supreme Court in the case of Ameer Zeb versus the State (PLD 2012 SC 380) and further approved in the case of Fareedullah versus the State (2013 SCMR 302) as follows:

“The record of this shows that the recovered charas allegedly weighing 24 kilograms was in the shape of 20 littars but after the alleged recovery one consolidated sample of the recovered substance had been taken which sample weighed 10 grams only. This admitted fact on the face of it attracts the ratio of the law declared by this Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380) and, thus, at best only one littar of charas could have been considered against the petitioners could have been convicted and punished accordingly. Going by the law of averages, if 20 littars weighed 24 kilograms then one littar would weigh 1.2 kilograms and it is only charas weighing 1.2 kilograms for which the petitioners could have been convicted and sentenced. In this view of the matter this Suo Motu Criminal Review Petition is allowed after condoning the delay in filing of the same, the order passed by this Court on 15.7.2009 dismissing the petitioners’ Jail Petition No.137 of 2008 and Jail Petitioner No.69 of 2009 is recalled, the said Jail Petitions are converted into appeals and the same are partly allowed with the result that the conviction of the petitioners-appellants for an offence under section 9(c) of the Control of Narcotics Substances Act, 1997 is maintained but their sentences, as peer the sentencing guidelines of the Lahore High Court, Lahore contained in the case of Ghulam Murtaza v. The State (PLD 2009 Lahore 362), are reduced to rigorous imprisonment for four years and six months each and a fine of Rs.20,000/- each or in default of payment thereof to undergo simple imprisonment for five months each. The benefit under section      382-B Cr.PC shall be extended to the petitioners-appellants.”       

 

19.     For the above stated reasons while relying on the above cited judgments while convicting the appellants under section 9(c) their sentence from imprisonment of life is reduced to 04 years and 06 months R.I. each and to pay fine of Rs.20,000/- each and in default S.I. for 05 months more. Appellants would be entitled to the benefit of section 382-B Cr.PC.

 

20.     With the above modifications, judgment of the trial Court is maintained. Consequently, the appeals are dismissed.

         

                          JUDGE

 

JUDGE

 

Gulsher/PA