IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.310 of 2009

                                                                     Present: Mr. Justice Sajjad Ali Shah

                        Mr. Justice Naimatullah Phulpoto

 

 

 

 

 

Appellant:             Behram Khan through Mr. Abdul Razzak Advocate.

 

Respondent:         The State through Mr. Khadim Hussain Deputy Prosecutor General Sindh.                                                

 

 

Date of Hearing:   29.01.2013                                                        . 

 

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J.- Appellant Behram Khan was tried by learned Sessions Judge/Judge Special Court, Control of Narcotic Substances, Mirpurkhas in Special Case No.32 of 2007 under Section 9 (c) of the Control of Narcotic Substances Act, 1997. Learned Special Judge convicted appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to imprisonment for life and to pay fine of Rs.100,000/- (Rupees One Lac), in case of default in the payment thereof, appellant was directed to suffer S.I for six months more. Benefit of Section 382-B Cr.P.C was also extended to the appellant.

2.       Brief facts of the prosecution case, as disclosed in the FIR are that on 20.07.2007, Excise Inspector Javed Karim Mehar, left office on the directions of Chaudhry Ghulam Ahmed Arain, In-charge Divisional Special Squad Hyderabad Region along with A.E.T.O Abdul Jabbar and subordinate staff ED Sikandar Ali, ED Allah Warayo, ECs Mohammad Iqbal, Nisar Ahmed and others in the government vehicle vide Roznamcha Entry No.4 at 1320 hours for patrolling towards Mirpurkhas. When at 1450 hours, Excise officials reached at Chandni Chowk, Mirpurkhas, where they received spy information that present appellant was standing at Jarwari Shakh Bus Stop Mirwah road and he was carrying black coloured plastic bag of Charas. On such information, Excise party proceeded to the pointed place and saw the present appellant standing there. Excise Inspector enquired the name of the appellant to which he disclosed his name as Behram Khan son of Adam Khan Ahmed Zai r/o Tariqabad Mohallah, Peshawar, at present Gulshan Hotel, Station Road, Hyderabad. It is stated in the FIR by Excise Inspector that due to the non-availability of private mashirs, he made ED Sikandar Ali and ED Allah Warayo as mahsirs, secured plastic bag from the possession of the appellant. It was opened, same contained 18 packets of Charas. From the front pocket of the shirt of the appellant, cash of Rs.380/- was also recovered. From each packet of one Kilogram, 10 grams of the Charas were taken as sample for sending the same to the Chemical Examiner. Samples were separately sealed. Remaining substance was also sealed in presence of the mashirs. During the interrogation, appellant disclosed that he had brought Charas from Peshawar for selling purpose. Mashirnama of arrest and recovery was prepared in presence of mashirs. Thereafter, appellant and case property were brought to the Excise Police Station, where FIR against the appellant vide Crime No.14/2007 under Section 9(c) of the Control of Narcotic Substances Act, 1997 was lodged on behalf of State. During investigation, 161 Cr.P.C statements of P.Ws were recorded. Samples were sent to the Chemical Examiner for analysis and Report. Positive report was received. On the conclusion of the investigation, Challan was submitted against the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997.

3.       Learned Sessions Judge/Judge Special Court, Control of Narcotic Substances, Mirpurkhas, framed charge against the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997 at Ex.2. Appellant met the charge with denial. Prosecution in order to substantiate the charge, examined the following witnesses:-

(1)      Mashir ED Sikandar Ali at Ex.4, who produced mashirnama of arrest and recovery at Ex.5.

 

(2)      Complainant Excise Inspector Javed Karim Mehar at Ex.8, who produced FIR, Roznamcha entries No.4 and 6 and report of chemical examiner at Ex.8/A to Ex.8/C.

 

 

Prosecution closed the side.

4.       Statement of appellant under Section 342 Cr.P.C was recorded at Ex.11. Appellant denied allegations and stated that 18 Kgs of Charas have been foisted upon him. Positive chemical report has also been managed and P.Ws are interested. Appellant has examined himself on oath in disproof of prosecution allegations. Appellant wanted to examine in his defence witnesses namely Abdul Ghafoor, Shahid Mehar, Mushtaque Mehar, SHO of P.S Taluka, Mirpurkhas and Haibat Khan before the Trial Court. However, appellant has examined only D.W. Muhammad Mushtaque Hussain  and Shahid Hussain Mehar before the Trial Court.

5.       Learned Sessions Judge/Special Judge Control of Narcotic Substances, after assessment of the evidence, convicted appellant as stated above.

6.       Mr. Abdul Razzak learned Advocate for the appellant mainly contended that no arrival and Roznamcha entries have been produced to satisfy the Court that Excise officials had actually left for patrolling. It is contended that private persons present in the vicinity were not examined though it was busy place. It is also argued that cash of Rs. 380/- was recovered from the pocket of the appellant and he belongs to Peshawar and the prosecution story is unbelievable and unnatural. It is also submitted that the Excise official who took sample to the Chemical Examiner has not been examined. Charas was wrapped in plastic bag and wrappers were not produced before the Trial Court. Attested copy of the positive chemical report has been placed on record. Defence evidence was not considered by the Trial Court. It is submitted that prosecution case is highly doubtful, there are several circumstances in the prosecution case, which create reasonable doubt and a single circumstance creating reasonable doubt in the prosecution case is sufficient to extend benefit of doubt to the appellant. Lastly, he argued that in case conviction is maintained, sentence of the appellant may be reduced to that of already undergone as appellant is the father of four children and the sole supporter of the family.

7.       Mr. Khadim Hussain learned DPG argued that evidence of the Excise officials is confidence inspiring and trustworthy. Excise officials had no motive to foist such huge quantity of Charas upon the appellant and samples of the Charas were sent to the Chemical Examiner within 24 hours. Learned DPG has further submitted that arrival and departure entries have been produced in the evidence and production of attested copy of positive report of the Chemical Examiner was not questioned seriously before the trial Court, however, he recorded no objection in case conviction is maintained and sentence of life imprisonment is reduced to that of already undergone.

8.       We have carefully scrutinized/scanned the evidence brought on record by the prosecution. Complainant Javed Karim Mehar, Excise Inspector has deposed that on 20.07.2007, he left office along with his subordinate staff for patrolling vide Roznamcha entry 4 at 1320 hours for patrolling. At 1450 hours he received spy information that present appellant was standing at Jarwari Shakh and was carrying black coloured plastic bag containing Charas. He has deposed that they proceeded to the pointed place, arrested the appellant and recovered from his possession plastic bag containing 18 packets of Charas and cash of Rs.380/-. Plastic bag was opened, each packet was of 1 KG, 10 grams were separated from each packet for sending to the Chemical Examiner. Samples and remaining substance were separately sealed in presence of the mashirs namely ED Sikandar Ali and ED Allah Warayo. Thereafter, case was registered against the appellant on behalf of state under Section 9(c) of the Control of Narcotic Substances Act, 1997. Samples were sent to the Chemical Examiner for the Report and the positive Report was received. Despite lengthy cross-examination nothing favourable to the appellant has been brought on record. Complainant had denied the suggestion that Charas have been foisted upon the appellant and he had demanded illegal gratification from the appellant.

9.       E.D. Sikander Ali has deposed that he had left along with complainant and other staff members for patrolling. On spy information, present appellant was arrested from Jarwari Shakh. A plastic bag was recovered from him, it contained 18 packets of Charas and cash of Rs.380/-. Weight of each packet was 1 KG. 10 grams were taken as sample from each packet by the complainant for sending the same to the Chemical Examiner. Mashirnama of arrest and recovery was prepared in his presence and in presence of co-mashir ED Allah Warayo. In the cross-examination, he had denied the suggestion that place of arrest of appellant is busy road. He has also denied the suggestion that Charas was not sealed at the spot.

10.     Appellant examined himself on oath in disproof of prosecution allegations and stated that he was arrested near Railway Station Hyderabad. After his arrest, raid was conducted on the orders of learned Sessions Judge. In the cross-examination appellant denied the suggestion that he has given false evidence to save his skin. D.W. Mushtaq Hussain has deposed that he runs hotel at Jarwari Shakh. On 20.07.2007 no such incident had happened with the appellant. DW-Shahid Hussain Mehar has also stated that he runs cabin at Jarwari Shakh, where such type of incident had not occurred.

11.     From the minute examination of the evidence as discussed above, it appears that evidence of Javed Karim Mehar is straightforward and confidence inspiring. His evidence is supported by mashir of recovery. Despite lengthy cross-examination of both prosecution witnesses, not a single major contradiction came on record. Attested copies of departure entries have also been produced before the Trial Court in order to show that Excise officils had actually left for the purpose of patrolling on the relevant date. It is settled law that evidence of Excise officials is as good as that of any other person until and unless malafide is brought on record against them, but in this case no specific malafide has been pointed out. Evidence of Excise officials is corroborated by the positive Chemical Report. Charas was recovered from the possession of the appellant on 20.07.2007. On 21.07.2007, samples were sent to the Chemical Examiner, Karachi for analysis. Positive report has been placed on record. Mere production of attested copy of positive chemical report in the evidence would not be fatal to the prosecution case. Therefore, we find that prosecution has succeeded to prove its case against the appellant and Trial Court has rightly appreciated the evidence brought on record.

12.     For the above stated reasons, we dismiss this appeal by maintaining conviction. However, keeping in view the submission of learned counsel that appellant is father of four children, sole supporter of his family as per jail roll issued by Superintendent Central Prison Karachi dated 28.01.2013, appellant has served sentence of 15 years, 04 months and 05 days including remissions. Therefore, sentence of life imprisonment is reduced to one already undergone and fine is also remitted.

13.     These are the reasons, for the short order announced by us on 29.01.2013.    

 

JUDGE

 

JUDGE