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