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Petitioner: NIAMATULLAH KHAN VS Respondent: THE STATE through Anti-Narcotics Force, Sindh
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Ather Saeed Title: NIAMATULLAH KHAN vs THE STATE through Anti-Narcotics Force, Sindh Case No.:Criminal Appeal No,441 and Criminal Acquittal Appeal No,451 of 2010
JUDGMENT
Reported As: 2012 YLR 251 Result: Order accordingly Judgment JUDGMENT ' IRFAN SAADAT KHAN, J.---By this common judgment we propose to dispose of the Criminal Appeal No, 441 of 2010 filed by the appellant Niamatullah Khan and Criminal Acquittal Appeal No,451 of 2010 filed by the State against the common judgment dated 7-9-2010 passed by the Special Court-I, CNS, Karachi whereby the appellant Nimatullah Khan was found to be guilty of the offence punishable under section 9(c) of CNS Act, 1997 and was convicted to suffer R.I. For life and fine of Rs,2,00,000 and in case of default in payment of fine to suffer further R.I. Of one year. However, benefit of section 382-B, Cr.P.C. Was extended to the accused. The connected Criminal Acquittal Appeal has been filed by the State against the above judgment whereby co-accused Muhammad Tahir Khan, Nadir Khan, Shafqat Ali and Hassan Ahmed Khan were acquitted. 2. Briefly stated the facts of the case are that the S.H.O. P.S. ANF Clifton Karachi received information from the superior Officials that international narcotics peddler Niamatullah was bringing huge quantity of narcotics in Hino Truck bearing Registration No,JU-3699, with intention to deliver the same at Millennium Mall, Gulistan-e-Jauhar near Askari Petrol Pump. On this information a raiding party was prepared comprising of the S.H.O. P.S. ANF, A.S.-I. Ali Gul FC Shamraiz, PC Aamir Mukhtar, PC Abdul Hafeez, PC Pervez Shah, PC Rahib Khan and other ANF Staff along with Driver Shahbaz. Entry in this regard was also made in police station vide Entry No,9. At about 1600 hours the said party proceeded to the designated place in two vehicles and also took the spy from the way and arrived at the pointed place at about 1700 houRs, The said vehicle was stopped at about 1730 hours near Askari Petrol Pump opposite to Millennium Mall in which four persons were present and
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another vehicle Honda Civic bearing Registration No, AHS 677, which was along with the truck, was also stopped. On the pointation of the spy the driver of the said car was identified as Niamatullah Khan. The passersby were asked to act as witness who refused to do so therefore PC Aamir Mukhtar and PC Abdul Hafeez acted as mashirs of the case. When the accused Niamatullah Khan was, interrogated he disclosed about the presence of Charas in a shopper bag lying inside the car near the hand break. He also pointed about a carton lying on the back seat of the car which as per the accused also contained the charas. The accused further disclosed presence of charas in truck also. On personal search of Niamatullah Khan Cash Rs,2,500, 2 mobile phones a coloured copy of CNIC and different keys were recovered. The carton was containing the words "Inject disposable Syringes", when the same was opened seven packets of charas wrapped with solution tape were recovered therefrom. 3. Four persons were apprehended from the truck who when interrogated disclosed their names as Nadir Khan, Tahir Khan, Shafaqat Ali and Hassan Ali Khan. While the matter was being interrogated Niamatullah Khan took out a key from his pocket and unlocked the container/cabinet on the rare side of the truck and upon checking of the same 22 cardboard cartons with the mark 'Inject Disposable Syringes' were found. Six cartons with mark "PLI Fragile 54 MM Cigarette Filter" were also found. All these cartons were opened and upon checking 8 packets with Khaki colour solution tape were found. The packets were opened and charas in shape of slabs in all 40 packets were found from the five cartons and in all from the car and the truck a total 240 Kgs. Charas was recovered. Samples were taken from each packet for sending the same for chemical examination and each packet was given a separate number. Upon search of the truck registration documents were recovered as per which the vehicle belongs to one Muhammad Tahir. The recovered property and the vehicles were seized and accused persons were taken into custody. Memo of arrest and recovery were prepared on the spot. On completion of the investigation, F.I.R. Was lodged against the accused persons, samples were sent for chemical examination and challan was submitted before the trial court, which after hearing the parties at length and examining the evidences passed the order impugned herein. 4. Mr. Sibtain Mehmood, learned counsel for the appellant Niamatullah Khan, has submitted that the case of the prosecution is full of contradictions and the order passed by the trial Court suffers from some serious defects and submitted that the accused may be acquitted keeping in view the facts and circumstances of the case. He submitted that in the F.I.R. Car number has been mentioned as JU-3699 whereas in the challan car number has been mentioned as AHS 677, which is a major contradiction. He submitted that there is variance in the deposition of the P. Ws., with regard to place of incident as at one place it is stated that accused persons were arrested at the Millennium Mall whereas at the other place it is mentioned that they were arrested opposite the Millennnium Mall, which according to him is a major contradiction. He further submitted that there is improvements in the deposition given by the P. Ws. As at one place name of father of accused Niamatullah was mentioned as Abdullah whereas at the other place it has been mentioned as Abadullah. He vehemently submitted that in the deposition of P.W.1 he has stated that while searching the accused all the items were taken away from him which included the cash, mobile phones, keys, coloured copy of CNIC etc. Whereas in the same deposition it was stated that the container/cabinet was opened by the accused by taking out a key from his pocket. Learned counsel submitted that when each and every item was taken away by the police from the accused how it was possible that he could take out yet another key from his pocket to open the container. Learned counsel submitted that this appears to be a major contradiction, so far as the deposition of P. W.1 is concerned, who is a police official. 5. Learned counsel went on to argue that it was stated that case property was produced in court whereas at another place it has been mentioned that container was desealed in presence of SPP
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and DC. Learned counsel submitted that this again is a major contradiction, as when the case property was produced before the court in sealed condition how come the same was desealed in presence of SPP and DC. He further submitted that there is no mention about one Pervez Shah being part of police raiding party in the deposition of P.W.1 whereas in the Roznamcha entry his name was mentioned to be a part of the raiding party. He submitted that admittedly the accused was in car which belongs to rent a car company, however it is strange that the said rent a car company was never examined by the Prosecution. He further submitted that in the form of the rent a car company the alleged signatures of the accused are totally different from that appearing on the CNIC. Learned counsel in this regard also produced before us the original CNIC of the accused Niamatullah and vehemently submitted that there is a marked difference in the signatures available on the rent a car form and on the CNIC. As per the learned counsel the signatures on rent a car form are forged signatures, which have been foisted upon by the ANF party as the accused was having some differences with one of the A.S.-I. Posted in ANF Department namely Asif Ali upon whose instigation the present case has been foisted upon him. He submitted that no investigation was carried out with regard to place where it was alleged that the said contraband items were placed in the truck. Learned counsel further submitted that no investigation of the truck owner was made by the prosecution, which causes heavy doubt in this regard. He further submitted that rent agreement produced by the prosecution also does not bear the name, father's name and signatures of the accused person which as per learned counsel is a forged and fabricated document. In support of his above contentions he has relied upon the following decisions:-- (1) SARWAR. JAN V. THE STATE (2004 PCr.LJ 1224) (2Y TAJ WALI AND 6 OTHERS V. THE STATE (PLD 2005 Karachi 128) (3) THE STATE/ANTI-NARCOTICS FORCE THROUGH DEPUTY DIRECTOR V. MUHAMMAD SIDDIQ (2010 YLR 2617) (4) ALI HASSAN V. THE STATE (PLD 2001 Karachi 369) (5) SYED KARIM V. ANTI-NARCOTICS FORCE (PLD 2003 Karachi 606) (6) NAZEER AHMED V. THE STATE (PLD 2009 Karachi 191) (7) ADIL HUSSAIN V. THE STATE (2003 YLR 1901) (8) ABDUL MAJEED AND ANOTHER V. THE STATE (2004 MLD 568) (9) TARIQ PERVEZ V. THE STATE (1995 SCMR 1345) (10) JAMIL SHAH V. THE STATE (1997 SCMR 1494) (11) ASHIQUE HUSSAIN CHANDIO V. THE STATE (PLD 1992 Karachi 5) (12) MUHAMMAD ASLAM JAVED V. ZAHUR AHMED AND OTHERS (2008 YLR 638) (13) ABDUL LATIF V. INSPECTOR-GENERAL POLICE AND OTHERS (1999 PCr.LJ 1357) (14) MUHAMMAD IQBAL V. THE STATE (1984 SCMR 930) (15) MUHAMMAD SIDDIQUE V. PROVINCE OF SINDH THROUGH HOME SECRETARY KARACHI AND 2 OTHERS PLD 1992 Karachi 358) (16) ASMA KHATOON V. SYED SHABBIR HUSSAIN SHAH A.C.M. AND FCM COURT-VI KARACHI WEST and 2 OTHERS (PLD 1996 Karachi 517).{{TABLE}} 6. On the other hand, Mr. S. Ashfaque Hussain Rizvi, learned Special Prosecutor ANF, submitted that the order passed by the trial court is an exhaustive and a speaking order. He submitted that the accused persons were caught red handed from the spot with huge quantity of narcotics in their possession hence the present accused persons do not deserve any leniency in this regard. He further submitted that all the items were recovered on the specific pointation of the, accused hence it cannot be said that a false case has been foisted upon them, or they had no knowledge about the same. He submitted that' it was the accused Niamatullah who pointed out the specific places from where the said contraband items were recovered. He further submitted that some minor contradictions would not vitiate prosecution proceedings as it is an admitted position that
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accused persons were carrying huge quantity of narcotic for delivering the same to some party. Non-production of Randari was not a fatal defect as according to him it has nowhere been said that the accused was not arrested from the spot or some other place. He further submitted that there is no contradiction with regard to deposition of P.W.1 about recovery of the key as upon personal search a number of items were recovered but the key remained available with the accused in his pocket which could not be located and the appellant himself produced the same for opening the container/cabinet of truck from where the contraband items were hidden. He submitted that this is a minor contradiction and no adverse inference in this regard could be drawn. He submitted that depositions of P. Ws. Had remained unshaken and were confidence- inspiring as no major contradiction has been pointed out. He submitted that the present case is to be seen as a whole and not in piecemeal and in a broad spectrum a prima facie case of conviction is made out hence no leniency may be granted to the accused in this regard, as drug trafficking is considered to be a crime against the society. He submitted that all the prerequisite conditions and legal formalities have been fulfilled including the formalities of sections- 20 and 21 of the CNS Act hence the conviction awarded to the accused by the Trial Court may be affirmed by dismissing this .Appeal. In support of his above submissions he relied upon the following decisions:- (1) ZAFAR V. THE STATE (2008 SCMR 1254) (2) ABDUL RASHEED V. THE STATE (2009SCMR 306) (3) MUNAWAR HUSSAIN ALIAS BOBI AND 2 OTHERS V. THE STATE (1993 SCMR 785) (4) SARFARAZ GUL V. THE STATE (PLD 2004 SC 334) 7. So far as the appeal filed by the State is concerned, he submitted that learned trial Court was not justified in acquitting the four accused persons as they were an ally of the accused Niamatullah and were arrested red-handed from the spot carrying huge quantity of contraband items. He further submitted that though the learned Trial Court has stated that Prosecution Was not able to prove its case against these four accused persons whereas in his opinion the Prosecution has proved to the hilt the case against the present accused and in view of the facts and circumstances of the case these persons may be convicted and the order passed by the Trial Court may be set aside. 8. Mr. Ilmuddin Khattak, learned counsel appeared for the other four acquitted accused persons named above in Criminal Acquittal Appeal No,451 of 2010 submitted that all these persons are poor labourers and had nothing to do with the recovery of the contraband items. He. Submitted that these persons are either driver, cleaner or labourers who had no role to play in carrying narcotics and their mere presence with the accused cannot be considered to be a charge against them. He submitted that admittedly their names were not mentioned by the spy as only the name of Naimatullah was mentioned; meaning thereby that there was no information available with the ANF with regard to involvement of these four persons in the crime. In the end he supported the order of Trial Court and submitted that the Court after detailed deliberation had rightly come to the conclusion that these persons had neither any knowledge of narcotics nor could be considered to be an ally of the accused Naimatullah and were rightly acquitted in this regard. In support of his above submissions he relied upon the cases of MUHAMMAD NOOR and OTHERS V. THE STATE (2010 SCMR 927), MEHARBAN and 2 OTHERS V. THE STATE (2011 PCr.LJ 8) and GHULAM HUSSAIN AND 9 OTHERS V. THE STATE (2011 PCr.LJ 72). 9. We have heard all the learned counsel at considerable length and have considered the record and the decisions relied upon by them. 10. The deposition of P.W.1, Syed Sher Ali Shah Shirazi (S.I. ANF), reveals that he was informed by his high-ups only half an hour before he made the raid to apprehend the accused person. He candidly admitted that no information about the other four accused persons was given either by his high- ups or by the spy. He further submitted that the raiding party comprised of 13 to 15 people and they
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reached at the designated place at about 1700 houRs, He also admitted that he was the complainant and the I.O. Of the case and being S.H.O. Of the said Police Station he does not require any written order from his high-ups regarding the investigation as it was his job. He further submitted that he stayed at the place of occurrence at about two hours which is a thickly- populated area. He also admitted, that he asked the passerby to act as mushir and only upon their refusal he made the other P.Ws. As mushirs of the case. He further submitted that the said vehicle came at the spot at 1730 houRs, He also admitted that there was no secret cavity in the truck, however, voluntarily stated that there was a container fixed in the truck. He also admitted that no contraband item was recovered upon the personal search of any of the accused persons. He also admitted that charas was found in the cartons available in the truck and in the car. He also admitted that in his examination-inchief he had categorically mentioned that the other four accused persons were companions of the accused Naimatullah. He also admitted that no confessional statement of the accused was recorded by him. He also admitted that he had not collected any independent evidence to prove that the other four accused persons were ally of the accused Naimatullah, hence, their involvement in commissioning the offence could not be proved. He submitted that the mushimama was prepared at the spot. He also submitted that the accused Tahir Khan is an employee of "Agility Co.". 11. P.W.1 also admitted that remand of the accused was obtained on 13-3-2009, however, submitted that he produced the accused on 12-3-2009 before the Magistrate as on that date there was a strike, hence, he produced the accused on the next day i.e, 13-3-2009. He, however, admitted that no proper entry of Randari has been kept by him in this regard. He also admitted that the other four accused persons had no knowledge about the availability of the charas in the cartons placed in the truck. He further submitted that he had no information whether the accused Naimatullah was ever involved in any charge prior to this charge as according to him the name of Naimatullah was given to him by the , spy stating that he was an international drug peddler. He further submitted that they had received information regarding availability of huge quantity of charas in truck only and not that of car. He also admitted that at the time of incident all the shops of Millennium Mall were open, however, no shopkeeper was asked to act as witness. He further submitted that the spy was taken from Nursery. He also stated that except two mushirs I e Amir Mukhtar and Amir Hafeez he had not recorded the statement of other members of the raiding party. He further admitted that upon the search of Naimatullah every item in his possession was taken into custody. He also admitted that colour of the Katta was not mentioned in the mushirnama. He also admitted that samples were not drawn from each packet, however, admitted that the samples were deposited on 13-3-2009 in the Maalkhana of P.S. However he could not produce any receipt in this regard. He also admitted that name of the person who deposited the samples in the laboratory was not available. He also admitted that though a letter was written to Mobile Company for obtaining the record but no record in this regard was either produced before the trial Court or was available with him. He also admitted that the container placed in the truck contained the monogram of a Company namely "J. Logistic International but no investigation in this regard was ever made by him about the said company. He also admitted that J. Logistic International Company was not involved in the smuggling of the narcotics. It is also seen from the record that the SPP ANF had given up the P.W. Amir Mukhtar. 12. The deposition of P.W.2, Abdul Hafeez (P.C. ANT), reveals the basic facts to be same as that of P.W.1, however, in his cross he submitted that P.W.1 did not ask inhabitants of locality to act as witness, however, voluntarily stated that passersby were requested who refused to act as witnesses. He submitted that no description about the weight of the charas has been mentioned in the mushimama. He also admitted that there was no mention either in the mushirnama or in his 161 Cr.P.C. Statement about weighing the contraband items on the electronic scale, whereas in the
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deposition of P.W.1 he has categorically stated that contraband items were weighed at the spot on the electronic weighing scale, which was available with them. He also admitted that neither any contraband item was recovered from the physical possession of the accused persons nor there was any secret cavity available in the container. He also admitted that no member of the raiding party ever knew Naimatullah prior to his arrest, however, voluntarily submitted that it was only the spy who knew him. He also admitted that no identification parade of the accused Naimatullah was ever made before the Magistrate through spy. He also admitted that the names of A.S.-I. Ali Gul, PC Pervez Shah, PC Muhammad Akram and PC Rahib Khan were not mentioned in the roznamcha entry dated 11-3-2009. He also submitted that soon after pointation they encircled the accused, in the meanwhile the spy disappeared from the place of occurrence. 13. P.W.2 also admitted that no document either from the truck or the car was recovered whereon the name of the accused Naimatullah was mentioned. He also admitted that they received the spy information about the truck only. He also Admitted that no airway bill, bill of lading or any document of consignment was recovered either from the truck or from the car. He also admitted that upon search of the accused Naimatullah they recovered all the items available with him in this regard, however, admitted that in his 161, Cr.P.C. Statement he had mentioned that the accused took out a key from the pocket of his shirt to unlock the container available in the truck. He also admitted that no contraband item was recovered from the cartons marked "Inject Disposable Syringe" from the truck. However, submitted that five cartons marked "PLI Furgyle 54 mm Cigarette" were recovered from the truck in which contraband items were present. He also stated that at the time of the raid there was no rush of the traffic. He also admitted that the accused Naimatullah was not arrested at the investigation of A.S.-I. Asif Ali. 14. The deposition of P.W.3, Muhammad Abid, owner of car showroom (Rent 'A' Car) reveals that on 4-3-2009 his friend. Asad Siddique called him on telephone and informed him that his friend Naimatullah Afridi requires a car on rent upon which he asked him to send your friend so that the car may be delivered to him. He further submitted that on the same date at about 1615 hours when he reached the showroom Naimatullah was present there who gave him a photocopy of his CNIC and thereafter a rent agreement for renting the car bearing Registration No,AHS-677 was executed. The rent was fixed at Rs,1250 per day and thereafter the car was handed over for 15 days to Mr. Naimatullah. He further submitted that on 18-3-2009 four persons from the A.N.F. Department reached his showroom and enquired about the car which had been handed over to Naimatullah. On their demand he handed over the relevant documents to those persons. The ANF officials asked him to contact Asad Siddique on telephone and to call him to the showroom. Asad Siddique was contacted by him and was asked to come to the showroom whose statement along with his statement was thereafter recorded by the ANF officials. He, however, admitted that no period of rent was mentioned in the agreement, however, voluntarily submitted that period is always mentioned when the car is returned. He submitted that he had no previous acquaintance with Mr. Naimatullah as he was introduced to him by his friend Asad. He also admitted that name of the guarantor was not mentioned in the agreement. He also admitted that the signature of Naimatullah was also not available on the agreement. He also submitted that he had not made any application for the return of the vehicle. He also stated that the car is registered in the name of his son. 15. The deposition of P.W.4, Muhammad Asad reveals that he is running a shoe store under the name and style of Regal Shoe Store at Karachi. He submitted that he met Naimatullah in a get together about one year before the date of the incidence and thereafter met with him 3/4 times. He stated that as Naimatullah required a car he helped him in obtaining the same as Abid was his friend. On 19-3-2009 he received a call from Abid who called him to come to his showroom immediately and when he reached there 3/4 persons in uniform were present who enquired from
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him about Naimatullah. He further submitted that he had no knowledge about the involvement of Naimatullah in any drug trafficking. 16. In the statements recorded under section 342, Cr.P.C. All the accused persons have categorically denied about their involvement in the alleged crime. The statement of Muhammad Tahir Khan reveals that he was working in Agility Co. As an outdoor Assistant. He stated that the prosecution story is false. He also stated that he wants to produce one Imran and Col. (Retd.) Asad Kiyani as his defence witnesses. He stated that on the day of the incidence his Manager informed him about transporting of some medicines, at about 6-00 pm he left the office and proceeded towards his home, however, when he reached at Drig Road signal his truck was stopped, which was being driven by his brother Nadir. He enquired as to what was going on when he found that two vehicles one Honda Civic Car and one Toyota Hi-ace were chasing his truck. He stated that thereafter the police picked him near PAF Museums and that he is innocent and has nothing to do regarding the alleged recovery of the contraband items. 17. The statement, under section 342, Cr.P.C., of accused Nadir Khan Afridi reveals that he was instructed that he had to lift some medicines from Defence. The person who contacted him disclosed his name as Naimatullah and he was asked to bring his truck near McDonald, Sea View. When he reached there he found two persons who took him to a house at Khayaban-e-Mujahid. He took his truck inside the…
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