HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.80 of 2014

Criminal Appeal No.79 of 2014

Criminal Jail Appeal No.214 of 2014

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Malik Gadi

Appellants: Muhammad Wajid S/o Muhammad Afzal (Cr. Appeal No.80 and Cr. J. A. No.214 of 2014) and Munir Ahmed S/o Manzoor Hussain (Cr. Appeal No.79/2014) through Mr. Abdul Razzak, advocate

Respondent: The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.

Date of Hearing : 07.11.2017

Date of Judgment : 10.11.2017

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellants Muhammad Wajid and Munir Ahmed were tried by learned Special Judge, Special Court-II (CNS) Karachi in Special Case No.659 of 2011. By judgment dated 21.02.2014 appellant/accused Muhammad Wajid 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.14,000/-, in case of default in payment of fine, he was ordered to suffer SI for 7 months and 15 days. Appellant/accused Munir Ahmed was also convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to 4 years R.I. and to pay fine of Rs.8,000/-, in case of default in payment of fine, he was ordered to suffer S.I. for 4 months and 15 days. Benefit of section 382-B, Cr.PC was extended to both the accused.

2. Brief facts of the prosecution case as reflected from the judgment of the trial Court are that on 19.11.2011, complainant SIP Khan Nawaz of P.S. SITE-A, Karachi West along with PCs Nafees, Bashir and driver PC Shahid left PS in official vehicle Mobile-I for patrolling. During patrolling SIP Khan Nawaz received message from PS through wireless to start snap checking near Philips and Johnson Company in the middle of Seamen Chowrangi and Nauras Chowrangi, SITE, Karachi. Above police party and another official vehicle Mehran-I headed by ASI Shakeel and other police officials reached at the said place and started snap checking. It is alleged that a about 1000 hours, one rickshaw appeared from Seamen Chowrangi, in which one passenger and driver were sitting. The said rickshaw was stopped and police apprehended both persons, the person who was sitting on back seat disclosed his name as Wajid. His search was conducted, he was having a plastic shopper in his lap, it was opened, there were eight packets of opium weighing 8 Kgs. On his personal search Rs.150/- were secured. The driver of the rickshaw disclosed his name as Munir, his search was conducted, two packets of opium, weighing 2 Kgs in same packing were recovered from the tool box of rickshaw on front side. 10/10 grams of Opium from each of 10 packets were taken out/drawn and sealed at spot as sample while the remaining 8 packets of opium sealed separately and 2 packets opium were sealed separately. The registration number of rickshaw was D-47488. SIP Khan Nawaz prepared memo of arrest and recovery in presence of witnesses ASI Shakeel and HC Yousuf on spot. Thereafter, the arrested accused persons along with recovered contraband narcotic and rickshaw were brought at PS where SIP Khan Nawaz lodged F.I.R. bearing Crime No.589/2011 under section 9(c) of the Control of Narcotic Substances Act, 1997. During investigation IO, SIP Muhammad Rasheed inspected the place of incident on pointation complainant SIP Khan Nawaz and other witnesses and prepared memo of site inspection, SIO SIP Muhammad Rasheed also recorded statements under section 161 Cr.PC of the witnesses and sent the samples to the chemical analysis. After completion of investigation the said IO has submitted final report against both accused under section 9(c) of the Control of Narcotic Substances Act, 1997.

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

3. At the trial, the prosecution to substantiate the charge examined P.W-1 Complainant SIP Khan Nawaz at Ex.6, PW-2 ASI Shakeel Ahmed at Ex.7, PW-3 Muhammad Rasheed Khan at Ex.8. They produced mashirnama of arrest and recovery, F.I.R., positive report of chemical examiner. Thereafter, prosecution side was closed.

4. Statements of accused were recorded under Section 342 Cr.P.C, in which prosecution allegations were denied. Regarding positive report of chemical examiner, plea was raised that accused had no concern whatsoever with such report, however, they examined themselves on oath in disproof of prosecution allegations. DWs were also examined in defence.

5. Trial Court after hearing the learned Counsel for the parties,
by judgment dated 21.02.2014, convicted the appellants under Section 9(c) of Control of Narcotic Substances, 1997 and sentenced them as mentioned above.

6. Appellants Muhammad Wajid and Munir Ahmed filed separate appeals through their advocate. Appellant Muhammad Wajid had also filed appeal through jail. By this single judgment, we intend to decide the aforesaid appeals, arising out of same judgment, passed by trial court.

7. Jail roll dated 11.05.2017 is received from Superintendent, Central Prison, Karachi, which shows that appellant Munir Ahmed has been released from jail on 19.08.2014, after expiry of sentence and his appeal has become infructuous. Appellant Muhammad Wajid has served 9 years 10 months and 10 days as per Jail Roll dated 11.05.2017 and he has to serve only one month sentence.

8. Mr. Abdul Razzak, learned advocate for appellant Muhammad Wajid submits that sentence, which appellant Muhammad Wajid has served would meet the ends of justice. He prayed for taking the lenient view, on the ground that appellant Muhammad Wajid is not previous convict. He is young man and married person and supporter of the family.

9. Mr. Muhammad Iqbal Awan, D.P.G. recorded no objection in case, sentence already served is ordered.

10. For our satisfaction, we have carefully examined the prosecution evidence available on record. Evidence of police officials regarding recovery of 8 Kgs opium from accused Muhammad Wajid has been proved and report of chemical examiner corroborates it. So far as the request for reduction in sentence awarded to appellant Muhammad Wajid is concerned, we have already mentioned that as per jail roll dated 11.05.2017 appellant Muhammad Wajid has already served 9 years, 10 months and 10 days, the remaining sentence is about 1 month and the appellant has to pay fine of Rs.14,000/-. In case of default in payment of fine, trial court has ordered him to undergo SI for 7 months and 15 days more. It is argued before us that appellant is not previous convict. He is young and married person and supporter of the large family. Appellant Muhammad Wajid has already served almost whole sentence, therefore, sentence already served would meet the ends of justice. So far the fine is concerned, it is remitted. Appellant shall be released forthwith, if he is not required in some other case. Appeal is dismissed on merits as not pressed. Sentence is reduced to already undergone.

11. Criminal Appeal No.79/2014 filed by appellant Munir Ahmed is dismissed as having become infructuous as appellant has already served the sentence and has been released from the jail on 19.08.2014 as per jail roll dated 11.05.2017.

12. Consequently, Criminal Appeal No.80 of 2014 and Criminal Jail Appeal No.214/2014 filed by Appellant Muhammad Wajid are also disposed of in the above terms.

J U D G E

Gulsher/PS