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Petitioner: Sheikh RIAZUDDIN VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Khadim Hussain M. Shaikh, Amjad Ali Sahito Title: Sheikh RIAZUDDIN vs The STATE Case No.: Criminal Appeal No, 313 of 2012 Date of Judgment:2018-03-12 Reported As: 2019 P Cr. L J 622 Result: Appeal dismissed
JUDGMENT
JUDGMENT 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 sections 6, 7, 8, 9, 12, 13, 14 and 15 of Control of Narcotic Substances Act, 1997 registered at police station ANF Clifton, Karachi. By judgment dated 20.10.2012, the appellant was convicted for offence under sections 6, 7, 8, 12 and 14 punishable under sections 9(c), 13 and 15 of Control of Narcotic Substances 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 s 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
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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 (sic.) 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 Nos,l 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 weighing, 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 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 sections 6, 7, 8, 9, 12, 13, 14 and 15 of the Control of Narcotic Substances 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
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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 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 concern 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 it's 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 Buz alias Kabacho Channa v. The State reported as 2017 PCr.LJ 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.
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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 and 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
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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 Punjab AIR 1973 SC 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 Qanun-e-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 discover), 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 Nos,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 weighing, 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 travelling through Emirate
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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 Substances 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.P.C. 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)."
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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 to 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 Narcotic Substances Act, 1997, which is reproduced herein below for ready reference:- "29. Presumption from possession of illicit articles.---In trials under this Act,…
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