HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.141 of 2010
Present: Mr. Justice Khadim Hussain M. Shaikh
Mr. Justice Amjad Ali Sahito
Appellant : Ghulam Mustafa
through Mr. Mamoon A. K. Shirwany, Advocate.
Respondent : The State/ANF through Mr. Habib Ahmed,
Special Prosecutor for the ANF.
Date of hearing : 16.02.2018
J U D G M E N T
Amjad Ali Sahito, J.– Appellant Ghulam Mustafa son of Sher Zaman was tried by the learned Judge of Special Court-I (C.N.S.), Karachi, in Special Case No.49 of 2006, arising out of Crime No.16 of 2006 for offence under Section 6/9-C of Control of Narcotic Substance Act, 1997 registered at police station ANF Clifton, Karachi. By judgment dated 15.03.2010, the appellant was convicted for offence punishable under Section 9-C of Control of Narcotic Substance Act, 1997 to suffer Life Imprisonment with fine of Rs.100,000/- (one lac only) and in case of default in payment of fine, it was further ordered that appellant shall suffer S.I. for six (6) months more.
2. The brief facts of the prosecution case in nutshell are that on 17.05.2006, the complainant Inspector Javed Iqbal along with Inspector Mir Badshah, PC Ali Sher and other ANF officials on spy information reached at the House No.1725/2984 at Mohallah Mianwali and knocked the door of said house, one person opened the door and claimed to be the owner of said house, who was apprehended; on inquiry, he disclosed his name as Ghulam Mustafa son of Sher Zaman; on his personal search, NIC and cash amount of Rs.600 were secured. Upon further search of said house, two canvas bags of green color, two nylon bags of white color and one nylon bag of green color, which was checked and from one canvas bag, 54 packets of Charas in shape of rods while from other canvas bag, 55 packets of Charas in shape of rods, each packet weighing one kilogram; the white nylon bag on opening found containing 54 packets of Charas, each packet containing two patties, and each packet weighing one kilogram, the other white nylon bag containing 45 packets of Charas in same manner, and third nylon bag of green color containing 21 packets of Charas Garda, each packet weighing one Kilogram and from same green nylon bag also secured 10 packets of Charas, each weighing one Kilogram, and Charas rods in scattered form weighing 11 Kilograms, total weighing of all the recovered narcotics was 250 Kilograms. All the recovered narcotics were sealed in same bags from which it were recovered for chemical examination. On further search of the said house, two cheque books of UBL, telephone diary, some visiting cards etc. were also secured from Wooden Almirah. Accused was arrest on the spot and prepared mashirnama of arrest and recovery in presence of mashirs PW-2 Inspector Mir Badhshah and PC Ali Sher, same was read over to them, who put their signatures on it. Thereafter, accused and recovered contraband Charas were brought at police station and lodged aforesaid FIR.
3. It is revealed from the record that after registration of aforesaid FIR, the investigation was carried out by Inspector Javed Iqbal. He sent the sealed parcels of secured Charas through PC-Mazhar Sahoo on 18.05.2006 to the office of Chemical Examiner, Government of Sindh, Karachi, so also recorded the statements of PWs under Section 161 Cr.P.C. and after completing all the formalities, submitted the final report under Section 173 Cr.P.C. against the appellant in the Court of law.
4. The charge at Ex.2 was framed under Section 6/9-C of the Control of Narcotics Substance Act, 1997 on 05.04.2008 against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried.
5. At the trial, in order to establish accusation against the appellant, prosecution had examined the following witnesses:-
(i) PW-1/complainant/investigating officer Inspector Javed Iqbal was examined at Ex.4, who produced memo of recovery and arrest FIR, chemical examination report, roznamcha entry at Ex.4/A to Ex.4/D respectively;
(ii) PW-2 Inspector Mir Badshah was examined at Ex.5;
These witnesses were cross examined by the counsel for appellant. Thereafter, leaned Special Prosecutor for the ANF closed the prosecution side vide Statement at Ex.6.
6. Statement of appellant was recorded under Section 342 Cr.P.C. at Ex.7, in which he has denied the allegations as leveled by the prosecution and stated that he is innocent; he has no concerned with the alleged recovery of contraband Charas; nothing was recovered from his possession nor from his house where he was residing at that time along with his wife and children; police have arrested him from the road near Abbasi Hotel where he was cleaning his Shahzore truck; he have enmity with some persons who with the help of complainant, involved him in this false case. However, appellant examined himself on Oath at Ex.8, so also examined three witnesses namely Muhammad Ishtiaque at Ex.9, Muhammad Rafique at Ex.10 and Muhammad Akram at Ex.11 in his defence. Thereafter, counsel for appellant had closed its’ side vide statement at Ex.12.
7. Trial Court after hearing the parties counsel and on the assessment of evidence, convicted and sentenced the appellant as stated above. Hence, appeal has been preferred against the impugned judgment.
8. Mr. Mamoon A. K. Shirwany, learned counsel for the appellant contended that it was the case of spy information inspite of that Inspector Javed Iqbal failed to call independent and respectable person from the place of arrest and recovery, hence, there is a violation of Section 103 Cr.P.C. He further argued that while conducting the raid in the house of appellant, Inspector Javed Iqbal along with other police officials entered into the house without any search warrant and violated the Section 21 of the Control of Narcotics Substance Act, 1997; that all the prosecution witnesses are the official of ANF and their evidence required independent corroboration. Lastly, learned counsel has submitted that in case conviction of the appellant is maintained, the same may be reduced to the period, which appellant has already undergone in jail, as according to him, the appellant and his family members are extremely poor and he is only earning member of his family. During confinement of appellant in jail, his family members are passing miserable life.
9. Conversely, Mr. Habib Ahmed, learned Special Prosecutor for the ANF while supporting the impugned judgment, has argued that prosecution has proved its case against the appellant; that ANF officials have no enmity to foist such a huge quantity of Charas upon the appellant; that as regard to the violation of Section 21 of the Control of Narcotics Substance Act, 1997 is concerned, it is suffice to say that investigating officer has received the information at about 02:00 a.m. in night time and it was not possible for him to obtain search warrant from the concerned Magistrate. Lastly he has argued that prosecution has proved its case against the appellant beyond any shadow of doubt; therefore, he prays that this appeal may be dismissed.
10. We have heard the learned counsel for the appellant and the learned Special Prosecutor for the ANF and gone through the evidence with their assistance.
11. As per available record, a huge quantity of Narcotics Charas i.e. total 250 kgs was recovered during search of the house of appellant situated at House No.1725/2984 at Mohallah Mianwali, Baldia Town, Karachi. As regard to the arguments of learned counsel for the appellant for non-performance of provision of Section 103 Cr.P.C. is concerned, it would be appropriate to refer Section 25 of the Control Substance Act, 1997, which reads as under:-
“25. Mode of making searches and arrest.---The provisions of the Code of Criminal Procedure, 1898, except those of section 103 shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of section 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections.”
It means that applicability of Section 103 Cr.P.C. in narcotic cases has been excluded and non-inclusion of any private witness in recovery proceedings is not a serious defect to vitiate the conviction. So far the evidence of ANF officials are concerned, they would be competent and their evidence cannot be discarded, only for the reasons that they are police officials. They have furnished straight forward and confident inspiring evidence and there is nothing on record to show that they deposed against the appellant maliciously or out of any animus. It cannot be believed that police officials would plant such huge quantity of narcotics viz. 250 kg upon the appellant from their own source.
12. So far the contention of the learned counsel regarding non-compliance of Section 21 of Control of Narcotics Substance Act, 1997, is concerned, it would be appropriate to refer Section 21 of Control of Narcotics Substance Act, 1997, which reads as under:-
“21. Power of entry, search, seizure and arrest without warrant.–(1) Where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may-
(a) enter into any such building, place, premises or conveyance;
(b) break open any door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under sub-section (1), the officer referred to in the sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.”
On bare reading of the above provision of law, it is clear that the provisions of Section 21 of the Control of Narcotics Substances Act, 1997 are not mandatory and non-compliance thereof in the case in hand under its peculiar circumstances would not affect the recovery of such huge quantity of narcotics substance in the instant case for the reason that it is evident from the evidence of PW-1 Javed Iqbal at Ex.4, that he has received information at about 02:00 a.m. in night, therefore, it was shortage of time and not possible for him to obtain search warrant at the cost of disappearance of the appellant and narcotics, as such, in the peculiar circumstances of the case, non-compliance of the provision of Section 21 of the Control of Narcotics Substance Act, 1997 could not make the conviction of the appellant bad in the eyes of law. Reference may well be made to the case of Muhammad Akram v. The State reported as 2007 SCMR 1671, the Hon’ble Supreme Court of Pakistan has held as under:-
12. The requirement to obtain search warrant can be dispensed with in cases where a quick action is required to be taken and it would be difficult to obtain search warrant where due to paucity of time the apprehension of narcotics being removed or culprits having chance to a escape are eminent. If said A.S.-I. had gone for obtaining search warrant there was likelihood of petitioner having escaped away and was thus, justified in conducting raid, search and seizure of huge quantity of narcotics without warrant. This Court in the case of Karl John Joseph v. The State PLD 2004 SC 394 held that requirement of search warrant could be dispensed with if the same could not be possibly obtained from the Court before conducting the search. It was also held in the case of Fida Jan v. The State 2001 SCMR 36 that provisions of section 20 of the Act being directory in nature and non-compliance thereof cannot be considered a strong ground for making the trial of the accused bad in the eye of law.”
13. We have gone through the evidence adduced at the trial and found that both the witnesses were cross examined at length, but no material discrepancy or contradiction in the evidence is pointed out by the learned defence counsel. PW-1 Javed Iqbal has fully supported the version of FIR and recovery of Charas from the house of appellant. PW-2 Mir Badshah also corroborated the evidence of PW-1 Javed Iqbal. No enmity, ill-will or grudge has been alleged or proved against the prosecution witnesses, to falsely implicate the appellant.
14. Considering the above facts and circumstances of the case, we are of the view that prosecution has succeeded to bring the guilt of accused at home and learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the trial Court while passing the impugned judgment. However, keeping in view the submissions made by the learned counsel for the appellant that family members of the appellant are extremely poor persons and are virtually starving due to confinement of appellant in jail. We have perused the Jail Roll dated 30.10.2017, which reflects that the appellant has served out the sentence of twenty three (23) years, eight (8) months and twenty eight (28) days including remissions up to 31.10.2017 and by now the appellant remained in custody twenty four (24) years, two (2) months and twenty eight (28) days, coupled with the fact that appellant is first offender and has no previous criminal record/history on his credit, therefore, the sentence of life imprisonment of the appellant is altered and reduced to the period which he has already undergone, vide short order dated 16.02.2018.
15. These are the detailed reasons for the short order announced by us vide order dated 16.02.2018, which reads as under:-
“16.02.2018.
Heard, learned counsel for appellant Ghulam Mustafa son of Sher Zaman and learned Special Prosecutor [ANF] for the State. For the reasons to follow, the instant appeal is dismissed on merits and the conviction awarded to appellant Ghulam Mustafa son of Sher Zaman, vide judgment dated 15.03.2010, passed by the Special Court-I (Control of Narcotic Substances) Karachi, in Special Case No.49 of 2006, re: The State v. Ghulam Mustafa, emanating from Crime No.16 of 2006, registered at Police Station A.N.F-Clifton, Karachi, for offence punishable under Section 9-C of the Control of Narcotics Substances, Act, 1997, is maintained. However, the sentence awarded to the appellant is altered and reduced to the period he has already undergone, which includes the period he was to undergo in lieu of the fine. The appellant is directed to be released forthwith in the instant case, if he is not required in any other case.”
JUDGE
JUDGE
Karachi.
Dated _______________
Faizan A. Rathore/PA*