THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Appeal No. 86 of 2021
Before:
Mr. Justice Mohammad
Karim Khan Agha
Mr. Justice
Irshad Ali Shah
Appellant: Syed
Ubaid-ur-Rehman through Mr. Mustafa Safvi advocate
Respondent: The
State through Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh
Date of hearing: 13.09.2021
Date of announcement: 16.09.2021
J U D G M E N T
IRSHAD ALI SHAH, J- The appellant by way of instant appeal has
impugned judgment dated 22.01.2021, rendered by learned 1st Additional Sessions Judge,
Karachi East, whereby the appellant for being in possession of 1020 grams of
heroin powder for an offence punishable under Section 6/9 of the CNS Act 1997 has
been convicted and sentenced to undergo imprisonment for five years and to pay fine of Rs.50,000/- and in case of
default in payment of fine, to undergo imprisonment for two months with benefit
of section 382(b) Cr.P.C.
2. It
is the case of the prosecution that the appellant was found possessing/carrying
through his car 1050 grams of crystal and 1020 grams of heroin powder by police
party of P.S Model Colony Karachi, led by SIP Zulfiqar Ali, for that he was
booked and reported upon.
3. The
appellant denied the charge and prosecution to prove it, examined complainant
SIP Zulfiqar Ali, P.W mashir PC Junaid Ali and I.O SIP Syed Muhammad and then
closed its side.
4. The
appellant in his statement recorded under Section 342 Cr.P.C denied the
prosecution’s allegations by pleading innocence by inter-alia stating that he
and his cousin Syed Hafizur Rehman were taken by the police when they were
going back to their house after visiting house of Bilal. Hafizur Rehman was let
off by police after acceptance of bribe while he was involved in this case
falsely by the police on account of his failure to pay the money being poor.
However, the appellant did not examine himself on oath to disprove the charge
against him in terms section of Section 340(2) Cr.P.C, but examined Syed
Rozuddin, Syed Hafizur Rehman and Bilal in his defense.
5. It
was impliedly stated by D.Ws Syed Rozuddin, Syed Hafizur Rehman and Bilal that
the appellant being innocent has been involved in this case falsely by the
police. An application was brought on record by them, which allegedly was moved
by Rozuddin the father of the appellant on 22.07.2020 with SHO PS Manghopir
stating therein that his son the appellant and nephew Hafizur Rehman have not
returned back to their house. No official of PS Manghopir however was called by
the appellant to prove filing of such application with PS Manghopir by his
father.
6. On
evaluation of evidence so produced by the prosecution the appellant was
convicted and sentenced by way of impugned judgment, only for being in possession
of heroin powder by learned trial Court as is detailed above.
7. It
is contended by learned counsel for the appellant that the appellant being
innocent has been involved in this case falsely by the police; that there is no
independent witness to the incident; that none has been examined to prove the
safe custody and transmission of the contraband substance to chemical examiner;
that the net weight of the contraband substance is different to its gross
weight and evidence which the appellant has brought on record in his defense
has not been considered by the learned trial Court in juxtaposition with the evidence
of prosecution. By contending so, he sought for acquittal of the appellant. In
support of his contention, he relied upon the cases of Basharat Hussain Shah
vs. The State (2020 P.Cr.L.J Note 39), Tariq Pervez vs. The State (1995 SCMR
1345), Abdul Ghani & others vs. The State and others (2019 SCMR 608), Haji
Nawaz vs. The State (2020 SCMR 687), Muhammad Jabir @ Viki vs. The State (2019
MLD 1743), Hussain Ali vs. The State (2020 MLD 70), Bashir Khan vs. The State
(2010 P.Cr.L.J 348), Muhammad Sultan @ Machhar vs. The State (2018 P.Cr.L.J
211) and Ameer Hamza vs. The State (2015 P.Cr.L.J 1402).
8. Learned
Addl. P.G for the state by supporting the impugned judgment has sought for
dismissal of appeal of the appellant by contending that the appellant has already
been dealt with leniently by learned trial Court. In support of his contention,
he relied upon case of Ibrar Ullah vs. The State (2021 SCMR 128).
9. We
have considered the above arguments and have perused the evidence on record.
10. As
per the case of prosecution, the appellant beside heroin powder was also found
to be in possession of crystal which is said to be a narcotic substance. He
impliedly has been acquitted for being in possession of crystal for the reason
that Industrial Analytical Center H.E.J Research Institute of Chemistry
University of Karachi, which analyzed the crystal was not notified as
laboratory by the Government. Perhaps in that context, it is contended by
learned Addl. P.G for the state that the appellant has already been dealt with
leniently by learned trial Court. As per complainant SIP Zulfiqar Ali and P.W
mashir PC Junaid Ali on 23.07.2020, they with rest of the police personnel were
conducting patrol, when reached adjacent to Mehran Depot, Moinabad road Model
Colony Karachi, they found the appellant in suspicious condition in a car. It
was signaled to stop. On inquiry the appellant disclosed his name as Ubaid ur
Rehman and on search from front seat of his car was secured a shopper, it was
found containing three packets, those were found containing crystal and heroin
powder. Heroin powder was weighed to be 1050 grams while crystal was weighed to
be 1020 grams. A memo of arrest and recovery was prepared at the spot and the
appellant with the recovery so made from him was taken to P.S Model Colony,
there he was booked in the present case formally. The investigation of the case
then was conducted by SIP Syed Muhammad, which was followed by submitting of the
charge sheet against the appellant. They have stood by their version on all
material points with regard to the arrest of the appellant and recovery of
narcotics substance from him. They could not be disbelieved only for the reason
that they are police officials. Indeed they were having no ill will to have
involved the appellant in this case falsely by making foistation of narcotic
substance upon him. At least the heroin powder for which the appellant has been
convicted and sentenced has been subjected to chemical examination on the very
next day to its recovery and there was no allegation of its substitution and/or
tempering with it, therefore, examination of Incharge of Malkhana or the person who taken the same to chemical examiner was hardly
required. It is true that the gross weight of the heroin powder recovered from
the appellant was found to be 1010 grams by the chemical examiner, but such
difference hardly creates a doubt with regards to the very recovery of the heroin powder as it entails same
punishment as is prescribed in the case of Ghulam
Murtaza and others vs. The State (PLD 2009 Lahore 362). In these
circumstances, learned trial Court was right to make a conclusion that the
prosecution has been able to prove its case against the appellant beyond shadow
of doubt so far recovery of heroin powder from him is concerned.
11. The
D.Ws being closely related to the appellant were having reason to support him
therefore, their evidence could not be given preference over and above the confidence
inspiring evidence of the prosecution, which even otherwise, is strongly
supported in shape of recovery of contraband substance from the appellant with
remote chance of its foistation.
12. The
case law which is relied upon by learned counsel for the appellant is on
distinguishable facts and circumstances. In case of Basharat Hussain (supra), the acquittal of the accused was
recorded mainly for the reason that the police was having beforehand
information of the incident yet no independent witness was associated. In the
instant case the police was having no beforehand information of the incident.
In case of Tariq Pervez (supra) it was
held by Honourable apex Court that the benefit of single circumstance creating
doubt is to be extended to the accused. In the instant case there appears
hardly a circumstance the benefit whereof could be extended to the appellant.
In the case of Abdul Ghani and others (supra),
issue of safe transmission of the charas to the chemical examiner was involved.
In the instant case, the heroin powder has been delivered to the chemical
examiner on the very next day of its recovery in sealed condition and there was
no dispute with regard to its substitution and/ or tempering with it even by
the appellant at trial. The substance so sent to the chemical examiner was also
found by him to have been properly sealed. In the case of Haji Nawaz (supra), the acquittal of the accused
was recorded mainly for the reason that the positive report of the forensic
laboratory was not put to him during course of his examination under Section
342 Cr.P.C. In the instant matter such report has been confronted to the
appellant during course of his examination under Section 342 Cr.P.C under
question No. 02. In the case of Muhammad Jabir alias Viki (supra), the acquittal of the accused was recorded mainly for the
reason that the case property was not sealed at the spot. In the instant
matter, the case property was sealed at the spot. In the case of Hussain Ali (supra), the acquittal of the accused
was recorded mainly for the reason that the substance was sent to the chemical
examiner with unexplained delay of 14 days to its recovery. In the instant
matter the heroin powder for which the appellant has been convicted and
sentenced was sent to the chemical examiner on the very next day of its
recovery. In the case of Bashir Khan (supra),
the acquittal of the accused was recorded mainly for the reason that the memo
of search was not produced at trial by the prosecution. In the instant matter
the memo of arrest of the appellant and search/recovery so made from him has
been produced by the prosecution at trial. In the case of Muhammad Sultan alias
Machhar (supra), the main reason for
the acquittal of the accused was that only 10 grams of charas was recovered and
mode and style of sampling was not described. In the instant matter, the entire
heroin powder recovered from the appellant has been sent to the chemical
examiner and there is no dispute with regard to mode of its sealing. In the
case of Ameer Hamza alias Hamza (supra),
the acquittal of the accused was recorded mainly for the reason that
complainant and mashir to recovery contradicted each other with regard to the
manner whereby charas was secured from the accused. In the instant matter, no
such contradiction is noticed.
13. In
view of facts and reasons discussed above, it could be concluded safely that no
mis/non-reading of evidence is apparent of the record on the part of learned
trial Court, which may justify making interference with the impugned judgment.
Consequently, the instant appeal is dismissed.
JUDGE
JUDGE