HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.313 of 2012

 

                                                 Present: Mr. Justice Khadim Hussain M. Shaikh

     Mr. Justice Amjad Ali Sahito

Appellant              :         Sheikh Riazuddin

Through Khalid Mehmood Kiyani, Advocate.

Respondent          :         The State/ANF through Mr. Habib Ahmed,

Special Prosecutor for the ANF.

Date of hearing     :        15.02.2018

Date of decision    :         15.02.2018

J U D G M E N T

Amjad Ali Sahito, J.– Appellant Sheikh Riazuddin son of Azizuddin was tried by the learned Judge of Special Court-II (C.N.S.), Karachi, in Special Case No.194 of 2004, arising out of Crime No.13 of 1998 for offence under Section 6, 7, 8, 9, 12, 13, 14 and 15 of Control of Narcotic Substance Act, 1997 registered at police station ANF Clifton, Karachi. By judgment dated 20.10.2012, the appellant was convicted for offence under Section 6, 7, 8, 12 and 14 punishable under Section 9-C, 13 and 15 of Control of Narcotic Substance Act, 1997 to Life Imprisonment with fine of Rs.500,000/- (five lac only) and in case of default in payment of fine, it was further ordered that appellant shall suffer R.I. for three (3) years. However, the benefit of Section 382-B Cr.P.C. was also extended to the appellant.

2.       The brief facts of the prosecution case leading to the filing of this appeal are that on 14.03.1998, complainant SIP Sajjad Ali of police station ANF Clifton, Karachi received spy information that accused Sheikh Riazuddin son of Azizuddin was making preparation to smuggle huge quantity of Charas to Fiji Island Australia. On such information, secret surveillance was started at the resident of appellant at 76/1-D, Block-8, Gulshan-e-Iqbal, Karachi and in the meanwhile, complainant SIP Sajjad Ali obtained permission for control delivery. On 30.06.1998, spy informed to the said complainant that accused Riazuddin, after getting container cleared from customs authorities, was managing to go abroad. On 01.07.1998 complainant SIP Sajjad Ali along with HC Manzoor Hussain, PC Aziz Khan and other ANF staff reached near the house of accused and arrested him on 01.07.1998 under the mashirnama at Ex.20, along with Honda Civic Car red color bearing registration No.Z-7246. Upon personal search, police party recovered export documents along with copy of Shipping Bill No.05207. During preliminary investigation, appellant Sheikh Riazuddin disclosed that one person namely David Defaur, who is otherwise British National staying at hotel Crown Plaza, Karachi in room No.140 since last one month and they both of them smuggling the huge quantity of Charas in Container No.MISU-236544-9 through Kota Singa Ship and the same to be received at Australia (Fiji Island) and the said container is available at East Wharf, Karachi after clearance from custom authorities. Arrested accused Riazuddin has disclosed that he and David Defaur executed an agreement at Dubai UAE to smuggle Charas from Pakistan and so also Nasim Shah and Akbar Ali Shah are their partners and residing at Dubai UAE. Accused Riazuddin also disclosed that co-accused David Defaur given him UAE Darham 200,000/- in Dubai UAE as advance and he brought Charas from Peshawar through one Alam Zeb. Accused Riazuddin further disclosed that he points out the container and co-accused David Defaur and thereafter, the complainant lodged aforesaid FIR under the above referred sections. After seeking permission from the higher ups, complainant along with ANF staff and arrested accused Riazuddin reached at hotel Crown Plaza, Karachi and on the pointation accused Riazuddin, co-accused David Defaur was arrested at 1300 hours on said date and on his personal search, one British Passport, one Air Ticket of Emirates Airlines, photocopy of shipping bill, photocopy of invoice, photocopy of packing list, one photograph of accused, some Pakistani currency, 200 British Pounds, visiting cards and some chits were secured. Complainant prepared memo of arrest and recovery of articles on the spot in presence of witnesses PC Manzoor Hussain and PC Aziz Khan and brought both the accused persons at police station ANF Clifton, Karachi. On the same day, complainant along with arrested accused Riazuddin and ANF staff reached at East Wharf, Karachi opposite Shed No.11, Port Area, Karachi at about 1530 hours, where accused Riazuddin led the police party to Container No.MISU-236544-9; seal of the container was broken in presence of witnesses HC Manzoor Hussain and PC Muhammad Aziz Khan. Inside there were cartons covered with the plastic bags bearing No.1 to 10, 21 to 30, 41 to 50, 61 to 70, 81 to 90, 101 to 107 and 108 total cartons 58 in number. The cartons were opened and found bed sheets and Charas in shape of slabs were kept. From each carton, 30 slabs of Charas and 20 number of bed sheets were kept and from Carton No.108, 35 slabs of Charas were secured. The Charas were packed in foil packet and the bed sheets were covered with plastic. Total 1745 packets of Charas were recovered and on weighting, one packet came to one kg total 1745 kgs Charas were recovered. One/one slab of Charas were separated from each carton total 58 slabs and sealed for the purposes of chemical analysis while remaining packets of Charas were sealed on the spot and such mashirnama of recovered of Charas was prepared on the spot in presence of mashirs namely HC Manzoor Hussain and PC Muhammad Aziz Khan. Thereafter, recovered contraband Charas, bed sheets and the container brought at police station ANF Clifton, Karachi.

3.       It also appears from the record that after registration of aforesaid FIR, the investigation was carried out by SIP Sajjad Ali, who after recording 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 by showing the appellant Sheikh Riazuddin, David Defaur and Akbar Ali Shah in custody while co-accused Naseem Shah, Alam Zeb and Billy shown as absconders.

4.             The charge Ex.13 was framed under Section 6, 7, 8, 9, 12, 13, 14 and 15 of the Control of Narcotics Substance Act, 1997 on 17.12.1998 against the appellant Sheikh Riazuddin along with co-accused by the learned trial Court under above referred sections, to which accused pleaded not guilty and claimed to be tried.

5.             At the trial, in order to establish accusation against the
appellant/accused, prosecution had examined the following witnesses:-

(i)           PW-1/mashir of arrest PC Muhammad Aziz Khan at
Ex.19, who produced mashirnama of arrest, personal search and seizing of car of accused Riazuddin dated 01.07.1998; Passport of accused Riazuddin bearing No.E­70372; another Passport No.A913879; Air Ticket of accused Riazuddin; counter foil issued by ISPI Corporation (Pvt.) Limited; Invoice of Fareed Entriprises; Registration Book of Vehicle bearing No.Z-7246; mashirnama of arrest and seizure of accused David Defaur; Shipping Bill; Invoice; photograph of accused David Defaur; London Transport Card in the name of accused David Defaur; Pocket Diary; Airline Ticket; Passport of accused David Defaur; mashirnama of recovery of Narcotics; mashirnama of recovery of articles from Hotel Crown Plaza; mashirnama of recovered of telephone bills; hotel bills and etc. and mashirnama of arrest of accused Akbar Ali Shah at Ex.20 to Ex.38 respectively;

 

(ii)          PW-2 Muhammad Yaqoob at Ex.40;

 

(iii)        PW-3 Complainant/Investigating Officer SIP Sajjad Ali at Ex.44, who produced order of control delivery dated 14.03.1998; FIR No.13/1998; chemical analysis report dated 06.01.1999 and memo of recovery of documents at Ex.45 to Ex.47/1 respectively;

(iv)       PW-4 Assistant Director ANF Abid Zulfiqar at Ex.54; and

 

(v)         PW-5 Civil Judge/Judicial Magistrate-IV, District Malir at Karachi, Mr. Sikandar Ameer Pahore at Ex.56, who produced application for recording the confessional statement of accused Riazuddin under Section 164, Cr.P.C; attested copy of statement under Section 164 Cr.P.C. at Ex.56/A and Ex.56/B;

 

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.58. It reveals from the record that during trial, on 03.11.2001, co-accused David Defaur jumped the bail by not attending the Court, so also declared proclaimed offender vide order dated 09.01.2006 while co-accused Syed Akbar Ali Shah was acquitted under Section 265-K Cr.P.C. vide order dated 02.12.2002.

 

6.             Statement of appellant was recorded under Section 342 Cr.P.C. at Ex.59, in which he has denied the allegations as leveled by the prosecution and stated that he is innocent; he has no concerned with the chemical report and denied the story of prosecution being false and fabricated. Appellant did not examine himself on Oath nor examined any witness in his defence. Thereafter, counsel for appellant had closed its’ side vide statement at Ex.60.

 

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. Khalid Mehmood Kiyani, learned counsel for the appellant contended that it was the case of spy information inspite of that SIP Sajjad Ali failed to call independent and respectable person from the place of arrest, hence, there is a violation of Section 103 Cr.P.C.; that all the prosecution witnesses are ANF officials and their evidence required independent corroboration; that according to the prosecution case, 1745 kgs of Charas were recovered on 01.07.1998, but only 58 samples were drawn from the secured Charas and sent to the Chemical Examiner on 04.07.1998 for examination and report, which are total 58 kg; that after the arrest of accused persons, the officials of ANF recovered the container of Charas on the pointation of appellant from East Wharf, Karachi opposite Shed No.11, Port Area, Karachi, but no private witness was cited as witness from the aforesaid place of recovery. Lastly, it is argued that prosecution has failed to prove its case against the appellant; thus, according to him, under the above mentioned facts and circumstances, the appellant is entitled for his acquittal. In support of his contentions, learned counsel has relied upon the following case laws:-

 

(i)           Muhammad Aslam v. The State reported as 2011 SCMR
820;

 

(ii)          Hussain Bux alias Kabacho Channa v. The State reported as 2017 P.Cr.L.J. 501;

(iii)        Nazeer Ahmed v. The State reported as PLD 2009 Karachi 191;

(iv)        Shafiullah and another v. Muhammad Saeed and 3 others reported as PLD 2005 Peshawar 46;

(v)          Niaz Ahmed v. The State reported as 2015 YLR 1204;

(vi)        Saeeda Gul and others v. The State reported as 2016 YLR 1205;

 

 

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 after the

 

arrest of the accused/appellant Sheikh Riazuddin led the officials of ANF to the place of recovery i.e. East Wharf, Karachi opposite Shed No.11, Port Area, Karachi, and on his pointation, officials of ANF recovered the Container bearing No.MISU-236544-9 containing Charas of total weighing 1745 kgs.; that ANF officials have no enmity to foist the huge quantity of Charas upon the appellant. It is further argued that appellant Sheikh Riazuddin himself accepted his guilt by recording his statement under Section 164 Cr.P.C. before the concerned Magistrate and admitted that due to loss of his business, he has started smuggling of Charas and joined with co-accused persons; that said Charas of 1745 kgs were recovered vide recovery memo at Ex.5, which was duly attested by the witnesses; that samples of recovered contraband Charas of one/one slab of Charas were separated from each carton total weighing 58 slabs, sent to the chemical examiner for report, which was produced at Ex.46 as positive. However, he admitted that remaining samples were not taken, but only 58 kg sent for chemical examination, which report is found as positive; that as regard to the delay in sending the samples of Charas to the chemical examiner is concerned, it is argued that delay in sending the samples of Charas to the concerned quarters for expert opinion cannot be treated fatal to the prosecution case in absence of objection regarding the same having been tampered with or manipulated. This plea of manipulation has not been raised by accused before the trial Court. Lastly, it is argued that trial Court has rightly appreciated the evidence, convicted and sentenced the appellant in accordance with law.

10.          We have heard the learned counsel for the parties and scanned the entire evidence available on record.

 

11.          Per available record, a huge quantity of Narcotics Charas was East Wharf, Karachi opposite Shed No.11, Port Area, Karachi which (recovery) was in consequence to information (pointation), so provided by the appellant Sheikh Riazuddin while in custody. The ‘Act’ is comprehensive in nature and covers all the acts and omissions whereby one physically possesses or has been in control of narcotics for any purpose, including import into or export from. There should be no reluctance in saying that in matters of import to or export from the huge quantity of ‘narcotics’ the question of guilt would not be dependent upon ‘establishing physical possession’ but the circumstances establishing active control or knowledge or that accused otherwise dealt with such recovered narcotics would be sufficient proof so as to recognize discharge of burden thereby burdening the accused to prove contrary. Reference may well be made to the case of Muhammad Noor & others v. The State (2010 SCMR 927) wherein it is held as under:-

“The above section expressly cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practicable difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word ‘possess’ appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word “Possess” appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word “possess” connotes in the context of section 6 possession with knowledge. The Legislature could not have intended to mere physical custody without knowledge of an offence, therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused had dealt with the narcotic substance or has physical custody of it or directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused will be held guilty by virtue of section 29, Act 1997. Reliance is placed on the cases of Inder Sin v. State of Punja AIR 1973bSC 2309.

 

Prima facie, the case in hand is of a ‘recovery’ in consequence to information (pointation) provided by the accused while in custody. At this juncture, it would be necessary to refer the Article 40 of Qanun­e-Shahadat Order, 1984 which is aimed to deal with such like situation. The same is reproduced herein below for ready reference:-

“40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

 

The true test for application of Article 40 of the Order has been defined in the case of Askar Jan v. Muhammad Daud (2010 SCMR 1604) which is as under:

“13. Thus, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused. Reference is also invited to Jaffer Hussain v. State of Maharashtra (AIR 1970 Supreme Court 1934). It is also important to note that the recovery of articles cannot be described as a discovery under Article 40 of the Order when they are not recovered from any hidden place and if in the normal course of investigation the investigation agency is bound to see them and take in possession without the accused making any statement of pointing them out.”

 

 

Perusal of record reveals that the appellant was arrested in consequence to spy-information who (appellant) then informed / pointed out the specific container; led the complainant party to such sealed container; seal whereof was broken in presence of mashirs namely HC Manzoor Hussain and PC Muhammad Aziz Khan. Inside the container, there were cartons covered with the plastic bags bearing No.1 to 10, 21 to 30, 41 to 50, 61 to 70, 81 to 90, 101 to 107 and 108 total cartons 58 in numbers. On opening, the cartons of bed sheets were found and Charas in shape of slabs kept therein was recovered. From each carton, 30 slabs of Charas wrapped with 20 number of bed sheets were recovered except from Carton No.108, wherefrom 35 slabs of Charas were recovered. The Charas were packed in foil packet and the bed sheets were covered with plastic. Total 1745 packets of Charas were recovered and on weighting, each packet came to one kg Charas, which was ready for smuggling by the present appellant from Karachi to Fiji Island, Australia. All these circumstances were sufficient to conclude that the appellant was in active knowledge least to have dealt with such an attempt to export such huge quantity of narcotics from Pakistan by concealing the same in cartons of ‘bed-sheets’. In such view of matter, the contention of the learned counsel for the appellant that the appellant had no knowledge of the availability of subject Charas in his aforesaid consignment is untenable.

12.     Furthermore, officials of ANF received information that said container was cleared by the customs authorities and ready for loading in their ship. Container was parked in front of Shed No.11 of East Wharf, Karachi and thereafter, on 01.07.1998, the appellant will be travelled through Emirate Airline, as at the time of arrest Air Ticket of Emirate Airlines was recovered, hence, the arguments made by the learned counsel for appellant has no force. Reference in this context can be placed on the case of Gul Muhammad v. The State reported in 2011 SCMR 670.

 

13.     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 of Narcotic 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 sections 20, 21, 22 and 23 to all warrants issued and arrest and searches made under these sections.”

 

It means that applicability of Section 103 Cr.P.C. in the Narcotics cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate the conviction. Needful to remind that prosecution also claimed that the shipment was got cleared and was likely to leave for its destination therefore, the deliberation of the investigating agency to rush at the place without wasting time in search of the private witnesses was always justified. A procedural formality cannot be insisted at the cost of completion of an offence or escape of the accused because it is otherwise by now a well settled principle of law that if an accused is otherwise found connected then mere procedural omissions and even allegation of improper conduct of investigation would not help the accused. Reference may well be made to the case of The State/ ANF v. Muhammad Arshad (2017 SCMR 283) wherein it is held as under:-

 

“.. We may mention here that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case.”

 

 

Even otherwise, the mere status of one as ‘official’ would not alone prejudice the competence of such a witness unless and until he is proved to be interested who has motive, falsely implicates an accused or has previous enmity with the person involved. Reference may be made to the case of Farooq Khan v. The State (2008 SCMR 917). It is settled principle of law that the prosecution witnesses belonged to ANF officers by itself cannot be considered as valid reason to discard their statements. In a case of Zafar v. The State reported in 2008 SCMR 1254, the Hon’ble Supreme Court of Pakistan has held that police employees are the competent witnesses like any other independent witnesses and their testimonies cannot be discarded merely on the ground that they are police officials. In the instant case, there has been brought no proof of enmity with the complainant as well as prosecution witnesses thus in absence thereof the competence of prosecution witnesses regardless of their being officials was rightly believed.

14.     Further, from the perusal of evidence particularly the mashir of recovery and arrest PC Muhammad Aziz Khan and complainant/I.O. SIP Sajjad Ali shows that they remained consistent so far as the time, place and mode of recovery is concerned despite lengthy cross examination by the learned defence counsel. Though, the appellant retracted from his confessional statement, recorded under section 164 Cr.PC but since it was also in line with the case of the prosecution therefore despite its retraction it may well be taken least as corroborative piece of evidence. Reference may well be made to the case of Mst. Rubina Bibi v. State (2001 SCMR 1914) wherein it has been held as under:-

 

“11.     Although she has retracted the confession but in view of the corroborative evidence discussed hereinabove in detail extra-judicial confession so made by her can be used against the petitioner in view of the principle laid down by this Court in the cases of State V. Minhun alias Gul Hassan (PLD 1964 SC 813) and Bahadur Khan v. The State (PLD 1995 SC 336).”

15.     It is now settled proposition of law by flex of time that in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands otherwise proved the approach of this Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The Hon’ble Supreme Court of Pakistan in the case of Ghulam Qadir v. The State reported in PLD 2006 SC 61 has held as under:-

“S. 9(c)---Appreciation of evidence---No acquittal on technicalities—Court in such like cases are supposed dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities.”

 

It is pertinent to mention here that chemical analysis report regarding Charas is sufficient to prove that the substance recovered from the appellant can be used to cause intoxication, and the prosecution has discharged its initial onus while proving that substance was recovered in consequence to information and at pointation of the appellant, whereas, the appellant had failed to discharge its burden in term of Section 29 of Control of Narcotics Substance Act, 1997, which is reproduced herein below for ready reference:-

 

“29. Presumption from possession of illicit articles.–In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of–

(a)   any narcotic drug psychotropic substance or controlled substance;

(b)   any cannabis, coca or opium poppy plaint growing on any land which he has cultivated;

(c)   any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily.

(d)  any material which have undergone any process towards the production or manufacture of narcotic drug”

From perusal of Section 29 of Control of Narcotics Substance Act, 1997, it is evident that where the prosecution prima facie proves recovery from or at pointation of accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs. Meaning thereby that the burden then would be upon the accused to establish his innocence and absolve himself from the allegations of recovery substances, while the prosecution has only to show by evidence that the accused was in physical custody or directly concerned with recovered narcotics substance. In the instant case, the recovery at pointation of the appellant, was prima facie established hence it was the turn of the appellant to have proved contrary. Without such proof the accused will be held guilty by virtue of section 29 of Control of Narcotics Substance Act, 1997 as has been held in the case of Muhammad Noor and others (supra).

 

16.     It is argued by the learned counsel for the appellant that recovered Charas were sent to the chemical examiner after the delay of three (3) days of recovery under the Control of Narcotic Substances (Government Analysts) Rules, 2001, the recovered Charas should have been sent to the chemical examiner within seventy two hours of recovery. It is contended that due to delay, positive report received in this case cannot be relied upon. Such contention is quite erroneous. The delay or spontaneity alone would be a sufficient proof recovery but it would first the report of chemical analyzer and then manner in which the sample is sent by assuring safe reach thereof in hands of Chemical Analyzer. The tampering, if established, would bring the status of timely sent samples even and if safe reach thereof is established the delay would not of any legal consequence. The Rules are directory in nature and however same no where places a bar on the Investigating Officer for ‘not sending the sample’ beyond seventy two hours of the seizure or that such delay would be sufficient to doubt the Report on this count alone. Reference may well be made to the case of Muhammad Sarfraz v. The State (2017 SCMR 1874) wherein it is held as under:-

 

“4..... Although there was a minor delay in sending the sample parcels to the Punjab Forensic Science Agency but the rules to that effect are directory and not mandatory. There is nothing on record to establish that the said parcels were ever tampered with rather the evidence led by the prosecution established that the parcels received by the same agency, remained intact.”

 

In the instant matter, the delay is only of three (3) days otherwise however there is no allegation of the present appellant that Charas was tampered during the process of transit. It was for the appellant to have taken such plea before the trial Court, but appellant did not do so. However, we have examined the chemical Analyzer’s report and found that the sealed parcel was received by him on 04.07.1998. Hence, the arguments put forwarded by the learned counsel for the appellant in this regard, is without substance.

 

17.     So far plea raised by the learned counsel for the appellant that complainant himself was investigating officer and all the witnesses are the officials of Anti-Narcotics Force and relied upon the case of Nazeer Ahmed v. The State reported in PLD 2009 Karachi 191. But in the case of The State v. Zafar reported in 2008 SCMR 1254, wherein the Hon’ble Supreme Court of Pakistan has observed that police officials are not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an investigating officer, so long as it does not in any way prejudice the accused person. Though the investigating officer and other prosecution are employees of ANF, they had no animosity or rancor against the appellant to plant such a huge quantity of Narcotic material upon him. The defence has not produced any such evidence to establish animosity qua the prosecution witness. In matters of huge quantity of narcotics the absence of the enmity or any valid reason for false involvement would also be a circumstance tilting the case against the accused. Reference may be made to the case of Salah-ud-Din v. The State reported in 2010 SCMR 1962, wherein it is held as under:

 

“.... No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motives which was never alleged. I view of the overwhelming prosecution evidence the defence version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reasons. ...”

 

All the prosecution witnesses have deposed in line to support the prosecution case. The witnesses have passed the test of lengthy cross examination, but defence has failed to make any dent in the prosecution story or to extract any material contradiction fatal to prosecution case.

 

18.     During the course of arguments, learned counsel for the appellant also contended that only 58 kg of Charas were sent to chemical examiner and case against him be treated as recovery from the appellant’s possession and total weight of Charas was 58 kg, therefore, for safe administration of justice, it may be concluded that appellant was liable to be responsible for having 58 kg Charas. In the case of Ameer Zeb v. The State reported in PLD 2012 SC 380, it has been held as under:-

 

 

(c) Control of Narcotic Substances Act (XXV of 1997)---S. 9---Recovery of narcotics----Representative samples---- Principle---Sample taken of a recovered substance must be a representative sample of the entire substance recovered---If no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cake/slabs are not kept separately for their separate analysis by Chemical Examiner, then the sample would not be a representative sample and it would be unsafe to rely on mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance---At least in some situations Control of Narcotic Substances Act, 1997, stipulates disproportionately long and harsh sentences and, therefore, for the purposes of safe administration of criminal justice, some minimum standards of safety are to be laid down so as to strike a balance between prosecution and defence and to obviate chances of miscarriage of justice on account of exaggeration by investigating agency--- Such minimum standards of safety are even otherwise necessary for safeguarding Fundamental Rights of citizens regarding life and liberty which could not be left at the mercy of verbal assertions of police officers which assertions are not supported by independent evidence provided by Chemical Examiner---Where any narcotics substance is allegedly recovered while contained in different packets, wrappers or container of any kind or in the shape of separate cakes, slabs or any other individual and separate physical form it is necessary that a separate sample is to be taken from every separate packet, wrapper or container and from every separate cake, slab or other form for chemical analysis and if that is not done then only that quantity of narcotic substance is to be considered against accused person from which a sample was taken and tested with positive results.

From the bare reading of the case law, it appears that the appellant is only responsible for transporting 58 kg of Charas and for such quantity, the sentence of death or life imprisonment is provided in the sentencing policy provided in the case reported as Ghulam Murtaza and others v. The State (PLD 2009 Lahore 362). In our humble view, the trial Court already taken lenient view and convicted the appellant for life imprisonment.

19.     Reverting to the last contention of the learned counsel for the appellant that prosecution has failed to prove its case against the appellant beyond any shadow of doubt, we have minutely perused the evidence of complainant, mashir PC Muhammad Aziz Khan and deposition of Civil Judge/Judicial Magistrate-IV, District Malir at Karachi, which appears to be confidence inspiring and trustworthy, as the appellant Shaikh Riazuddin after clearance of container, containing the huge quantity of Charas for its smuggling through Kota  Singa Ship from Karachi to Fiji Island, Australia was just to flee away abroad, was arrested with passport etc. followed by the recovery of huge quantity of Charas on discovery and pointation of the appellant as is evident from the deposition of PW-3 Complainant SIP Sajjad Ali who has been fully supported by the prosecution witness PW-1 PC Muhammad Aziz Khan, who is also mashir of recovery and arrest and they have further been corroborated by the material documents including FIR, memo of arrest and recovery of two Pakistani passports of the appellant along with his Air Ticket of Emirate Airlines and on his pointation, co-accused namely David Defaur was arrested from Hotel Crown Plaza situated at Shahrah-e-Faisal, Karachi, confessional statement under Section 164 Cr.P.C. of the appellant and evidence of learned Civil Judge/Judicial Magistrate-IV, District Malir at Karachi, who recorded his aforesaid confessional statement, wherein the appellant has given the entire details of smuggling of such huge quantity of Charas viz. 1745 kg., which was recovered on the pointation of the appellant. It is further added that despite lengthy cross examination, nothing adverse to the prosecution case has been extracted from the prosecution witnesses during cross examination by the defence counsel and even no enmity or ill-will is alleged against the prosecution witnesses by the defence. Moreover, the appellant Sheikh Riazuddin has not entered into witness box to record his statement on oath under Section 340(2) Cr.P.C. nor produced any defence witness. As far as, the cases under Control of Narcotics Substance Act, 1997 is concerned, the prosecution is required to discharge the initial burden, whereas, in this case accused does not dispute the recovery, but only has urged his lack of knowledge, which has not been established by the defence, as discussed above. Further, since the appellant was arrested and export documents of consignment of Container No.MISU-236544-9 were secured from his possession and huge quantity of Charas weighing 1745 kgs on his pointation was recovered from the subject container, therefore, the appellant was under obligation to have satisfied the conscious of the Court by creating reasonable circumstances justifying the inference that the appellant was in fact not aware about the Charas, in which he has miserably failed. The business of narcotic is a menace for the entire society and requires to be curbed through iron hands, therefore, the Courts to have dynamic and pragmatic approach and if the conscious of the Court is satisfied regarding involvement of an accused, then the technicalities are to be avoided in view of dictum laid down by the Hon’ble Supreme Court of Pakistan in the case of Ghulam Qadir v. The State (supra).

 

20.     Considering the above facts and circumstances, we are of the view that prosecution has succeeded to bring the guilt of accused/appellant at home and has proved its case against the appellant beyond any shadow of doubt. 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, which in our humble view, is based on appreciation of evidence and same does not call for any interference. Accordingly, the instant criminal appeal is dismissed being devoid of merits.

 

21.     These are the detailed reasons of the short order announced by us vide order dated 15.02.2018, whereby the appeal was dismissed.

 

JUDGE

JUDGE

 

Karachi.

Dated____.03.2018

 

 

 

 

 

Faizan A. Rathore/PA*