IN THE HIGH COURT OF SINDH AT KARACHI.
Criminal Appeal No. 101 of 2002
PRESENT : Mr. Justice Shabbir Ahmed.
Mr. Justice Muhammad Sadiq Laghari.
Date of hearing: 18.12.2002_________________________________
Appellant: Fazal Ahmed through Mr. M.Ilyas Khan Advocate_.
Respondent : The State through Mr. Shoib Ashraf, Special Prosecutor, ANF._____________________ ______.
MUHAMMAD SADIQ LAGHARI, J: . Appellant Fazal Ahmed was tired and convicted by learned Judge Special Court (CNS) Karachi Division for offence under Section 9C CNS Act. He was awarded sentence of imprisonment for life with fine of Rs.1,00,000/= in default to suffer one year R.I. further.
2. The prosecution case is that on 16.2.1999 Sub-Inspector ANF Syed Liquat Ali Zaidi, Inspector Ghulam Abbas and other member of ANF were Mobile. They, on the pointation of an informer apprehended a person namely Zafar at Main Sher Shah Chowrangi Bus Stop and recovered 11Kgs opium from his possession. It is said that during interrogation Zafar disclosed that his companion carrying Narcotics substance was available at Pankha Hotel. The ANF party took Zafar with them towards Pankha Hotel and on his pointation intercepted the person available at Bus Stop near Pankha Hotel. That person introduced himself as Fazal Ahmed. The Nylon bag with him was checked and found containing 12 Kgs opium. After drawing the samples they and the bulk were sealed separately. Thereafter Mushirnama of seizure and arrest was prepared. The captive and the stuff were taken to Police Station ANF-2, where the cases were registered against the captives.
3. After investigation Fazal Ahmed was sent for trial. In the result of trial the learned Judge Special Court (CNS) Karachi Division convicted the appellant and awarded him sentence mentioned above by judgment dated 15.4.2002. The conviction and the sentence have been appealed against.
4. It was argued by Mr. M. Ilyas Khan the appellant’s learned Advocate that the Complainant/Seizing Officer, despite information in advance, did not associate with them any private person for witnessing the expected recovery, therefore, the evidence of two Anti-Narcotics Officials could not be believed. He also contended that the prosecution evidence did not prove the actual weight of the opium allegedly recovered from the possession of the appellant It was also argued by Mr. M. Ilyas Khan that the statute provides the imprisonment for life as minimum punishment for possessing more then 10 kg opium which means pure opium and in present case it is not proved that the 12 Kg opium allegedly recovered was pure opium. He also argued that the 100 Kg of heroin and 10 Kg of opium can not be placed on same pedestal as 10 grams heroin can be derived out of one Kg opium. Therefore punishment prescribed for possessing more then 10Kg opium should not be same which is to be awarded for possessing more then 10 grams Heroin.
5. The learned Special Prosecutor defended the conviction and sentence submitting that law does not require the association of a private person in the process of arrest and recovery in narcotics related case. He further contended that taking into account the general trend in our Society where the people hesitate and decline to become witnesses against narcotics dealer or carriers the legislature dispensed with even the compliance of Section 103 Cr.P.C. through express provision of the law. According to him Anti-Narcotics Force Officials are as good witness as any one else. That in present case the witnesses who had no ill will for the appellant deposed against him, and their evidence does establish the recovery of opium from his possession. He also argued that an unambiguous suggestion to Syed Liaquat Ali Zaidi during the cross-examination that the investigation revealed that the substance recovered from the appellant was owned by absconding accused Malang an admission of the recovery. The Special Prosecutor further contended that the total weight of the opium was proved to be 12 Kg as the evidence of witness on that point was not challenged by any question in the cross-examination.
6. As regards the absence of private witnesses, the Anti-Narcotic Officials had admittedly not joined any private person with them while proceeding to the place, indicated by the spy/informer, but that fact, by itself, does not justify discarding the evidence of Anti-Narcotic Officials who are legally competent to testify. However, it was to be assessed. Both of the PWs namely Inspector Ghulam Abbas and Sub-inspector Sayed Liaqat Ali Zaidi of Anti-Narcotic Force have deposed that after recovery of opium from Zafar he (Zafar) in the result of interrogation, informed that his companion carrying consignment of opium was available at Pankha Hotel. They then took Zafar with them and proceeded to Pankha Hotel. On Zafar’s pointation they intercepted a person having one bag in his hand and recovered 12 pieces of opium 1kg each from him. They further deposed that after drawing samples the Bulk and samples were sealed separately under the cover of Mushirnama. After that both of the culprits and substance were taken to ANF PS-II. The witnesses were subjected to cross-examination but nothing such was extracted from them which could make their evidence doubtful. On the contrary, a suggestion was made to P.W. Sayed Liaqat Ali Zaidi that the investigation revealed that the appellant was carrier and was promised to be paid Rs.5000/= for transportation of opium from Balochistan to Karachi and absconding accused Malang was the owner of the opium. This suggestion was agreed to by the witness. In fact, the suggestion in cross-examination amounts to an admission of the recovery of the opium from the appellant. In view of these facts, the direct evidence of the above named two officials of Anti-Narcotic Force does establish the recovery of opium from the possession of the appellant.
7. The contention about the purity is also devoid of substance. It is not based upon any thing in the evidence. On the contrary the evidence specially the report of Chemical Examiner contains that the samples examined chemically were the opium.
8. On the question of production of the stuff the contention of Mr. Ilyas Khan is not correct. It is in the evidence of PW Pervaiz Shah that the accused and property are present in Court and that part of evidence does not seem to have been challenged.
9. It is true that stuff produced before the Court was not weighed there and the evidence of prosecution witness on that point was believed but there seems no justification for taking exception to the finding of the learned trial Court in that respect, specially when the defence did not question the evidence of the witness relating to the weight of the substance. No question at all was put to them in that respect when each of them deposed expressly that the total weight of the stuff was 11 kgs.
10. The comparison made by Mr. Ilyas Khan in the Heroin Powder and opium also can not be attached any weight as it relates to the legislation and not the interpretation of law or the appreciation of evidence.
11. In the last a word about the defence witness Abdul Latif Taxi Driver , although he deposed that about 2 ˝ years back at 1:30 P.M. three persons out of whom one had Kalashankove had come in a car at Shaheen Coach Service and taken two persons namely Fazal and Zafar from there. This evidence does not carry any weight merely for the reasons that the appellant did not claim in his statement under Section 342 Cr.P.C. that he was taken from the office of Shaheen Coach Service and the event was witnessed by Taxi Driver Abdul Latif.
12. The result of above discussion is that the prosecution evidence proves the guilt of the appellant and the learned trial Court rightly convicted. Consequently the appeal fails and is dismissed.
JUDGE
JUDGE