IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No. 137 of 2016
Before: Mr. Justice Aftab Ahmed Gorar &
Mr. Justice Khadim Hussain Tunio
Arshad Rasool son of Muhammad Afzal . . . . . . . . . . . . . . . . . Appellant
VERSUS
The State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent
J U D G M E N T
Date of hearing : 03.04.2018.
Appellant through : Mr. Mahar Qadir Khan, Advocate
Respondent through : Mr. Habib Ahmed, Spl. Prosecutor ANF a/w
Mr. Liaquat Ali DD Law, ANF.
Aftab Ahmed Gorar, J.:- This appeal filed under Section 48 of the Control of Narcotic Substances Act 1997, is directed against the judgment dated 15.03.2016 passed by the learned Special Judge-II (CNS) Karachi in Spl. Case No.718 of 2014 arising out of FIR No. 17/2014 under section 6/9-C, Control of Narcotics Substance Act, 1997 registered with Police Station ANF, Karachi whereby the appellant was convicted and sentenced to undergo imprisonment for life and fine of Rs.1,00,000/-, in default whereof to suffer one year simple imprisonment more.
2. The prosecution case as gleaned from the report lodged by Inspector Muhammad Muzammil on 15.8.2014 at 1930 hours is to the effect that on the same day he alongwith other Anti-Narcotics Force staff, arrested the accused arshad Rasool and from the driving seat of Rickshaw bearing registration No. D-12/06401 recovered 12 foil packets of charas weighing 12 Kgs concealed in secret cavity of the said rickshaw; during investigation it was revealed that absconding accused Habib Khan Afridi and Alf Shah were the companions in such business of narcotics. He was, therefore, booked for the offence vide FIR mentioned above.
3. After completion of investigation, formal challan was put against the accused in Court where he was formally charge sheeted but he did not plead guilty. Therefore, the prosecution in order to prove its case against the accused produced Muhammad Muzammil as PW-1 who produced Roznamcha entry at Exh: 5/A, memo of arrest and recover at Exh: 5/B, FIR at Exh: 5/C, Roznamcha Entry of arrival at Exh: 5/D, letter addressed to the Chemical Examiner at Exh: 5/E, report of Chemical Examiner at Exh: 5/E-1, letter addressed to the ETO, Motor Registration Wing, Karachi at Exh: 5/F, reminder with regard to ownership at Exh: 5/F-1, ownership certificate and computerized slip at Exh: 5/G and 5/G-1, letter addressed to CPLC and ACLC at Exh: 5/H, report of ACLC at Exh: 5/H-1 regarding rickshaw, letter addressed to the SHO Police Station Docks regarding criminal record of accused at Exh: 5/I; PW-2 PC Asif Ali who also corroborated the evidence of complainant and recognized the memo of arrest and recovery at Exh: 5/B. Thereafter side of of prosecution was closed and statement of accused under section 342 Cr.P.C. was recorded in which he professed his innocence however he did not opt to examine oath nor produce any witness in his defence. The learned trial Judge after evaluating the evidence brought on record and hearing the parties found the accused guilty of the offence and convicted and sentenced him as stated above. Hence this appeal.
4. Learned counsel for the appellant contended that the impugned conviction is against facts, law and thus not sustainable; that the learned trial Judge has ignored the mandatory provisions of the CNS Act 1997; that no private person was called to act as mashir of arrest and recovery; that registration number of official vehicle has not been mentioned in the Roznamcha; the complainant himself investigated the matter. Learned counsel for the appellant while reiterating the grounds mentioned in the memo of appeal added that the punishment awarded to the appellant is very harsh and appellant deserves leniency.
5. The learned Special Prosecutor ANF defended the impugned judgment of conviction of the appellant on the grounds that the prosecution had successfully proved its case against the convict; that there was no animosity between the appellant and the PWs to falsely rope him in the offence; that a huge quantity of contraband charas was recovered from the Rickshaw which was driven by the appellant and that the appellant dealing in the heinous business of narcotics which is destroying the whole humanity deserves no leniency.
6. We have taken into consideration the arguments advanced by both the parties and carefully gone through entire record of the case.
7. The globalization of drug abuse has become one of the gravest problems confronting humanity. The world, at large, has waged an admirable war against drugs. Many developed and developing countries have achieved remarkable results by making huge investments to check narcotics trafficking while simultaneously reducing the in-house demand for illicit substances. It may be advantageous to mention here that the Control of Narcotics Substance Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecution, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences. It provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences. Section 9 of CNS Act, 1997 provides as under:-
“ 9. Punishment for contravention of sections 6, 7 and 8
Whoever contravenes the provisions of Section 6, 7 or 8 shall be punishable with:-
(a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b):
Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.”
8. Admittedly, in the present case huge quantity, i.e. (12) Twelve kilograms charas, was recovered from Rickshaw bearing registration No. D-12/06401 concealed in secret cavity of the said Rickshaw thus the quantity of narcotics exceeds ten kilograms and case falls in Clause (c) of Section 9 of the Act, for which death penalty or imprisonment for life has been provided. No enmity, ill-will or grudge has been alleged against the prosecution witnesses; on the contrary, sufficient material has brought by the prosecution on the record including report of Chemical Examiner relating to positive report of narcotic substance. So far as the contention of the learned counsel for appellant that the recovery was not witnessed by persons from public, it may be observed that section 25 of CNS Act excludes the application of section 103 Cr.P.C. further the alleged recovery was witnessed by the ANF officials is negated by the fact that the appellant had failed to bring anything on record that he had falsely been roped in the offence because of any rivalry with the official witnesses. Besides, 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-C of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. The wisdom is derived from the case titled as “Kashif Amir Vs The State” (PLD 2010 SC 1052).
9. From the facts and circumstances of the case, the prosecution had successfully proved its case against the convict/appellant and, therefore, the learned trial Judge has rightly convicted him. Consequently, we find no merit in this appeal.
10. By a short order dated 03.04.2018 the instant appeal was dismissed and above are the reasons for the said short order.
J U D G E
*Aamir/PS* J U D G E