SHAFIQ AHMED Versus State
AFTAB AHMED GORAR, J.--- This appeal filed under section 410, Cr.P.C. is directed against the judgment dated 07.06.2012 passed by the learned Special Judge-I1 (CNS) Karachi in Spl. Case No.394 of 2011 arising out of FIR No. 207/2011 under sections 6/9-C, Control of Narcotic Substances Act, 1997 registered with Police Station Ibrahim Haydri, Karachi whereby the appellants were convicted and sentenced to undergo imprisonment for life and fine of Rs.10,00,000/-, in default whereof to suffer five years rigorous imprisonment more, the benefit of section 382-B, Cr.P.C. was also extended to the appellants.
2. The prosecution case is that on receiving spy information that two persons are available at under construction house at Khaskheli Para, Ibrahim Hyderi having huge quantity of Charas which they want to shift some other place, the police party raided the pointed place and on pointation of spy found two persons having 2/2 plastic bags with them, apprehended them and searched the said plastic bags and found charas in shape of packets, total four plastic bags were recovered and in each plastic bag 20/20 packets of charas were found in shape of slabs weighing one kilograms total 80 Kgs charas and FIR was registered against the appellants.
3. After completion of investigation, formal challan was put against the accused in Court where they were formally charge sheeted but they pleaded not guilty. Therefore, the prosecution in order to prove its case against the accused produced PW-1 complainant SIP Muhammad Irshad, PW-2 Mashir of recovery and arrest HC Wasim Akhtar and PW-3 Investigating Officer of the case SIP Akbar Hameed Ghori. Thereafter side of prosecution was closed and statement of accused under section 342, Cr.P.C. was recorded in which they professed their innocence however they did not opt to examine on oath nor produced any witness in their defence. The learned trial Judge after evaluating the evidence brought on record and hearing the parties found the accused guilty of the offence and convicted and sentenced them as stated above. Hence this appeal.
4. Learned counsel for the appellants while reiterating the grounds mentioned in the memo of appeal relied upon the case reported as Ghulam Khan v. The State (PLD 2005 Peshawar 180), Taj Wali and 6 others v. The State (PLD 2005 Karachi 128), (2003 MLD Peshawar 259), Muhammad Rashid and another v. The State (2006 YLR 2979), Nabeela Bibi v. The State (2005 PCr.LJ. 1472), Ali Haidar v. The State (1981 PCr.LJ 97), Muhammad Iqbal alias Bali v. The State and another (2008 PCr.LJ 1355) and Taimoor Khan and another v. The State and another (2016 SCMR 621) and contended that the punishment awarded to the appellants is very harsh and appellants deserves leniency. Learned counsel for the appellants added that the impugned conviction is against facts, law and thus not sustainable; that the learned trial Judge has ignored the mandatory provisions of the CN.S. Act, 1997. Lastly she prayed that impugned judgment may be set aside and appellants may be acquitted.
5. The learned Deputy Prosecutor General, Sindh defended the impugned judgment of conviction of the appellants on the grounds that the prosecution had successfully proved its case against the convicts; that there was no animosity between the appellants and the PWs to falsely rope them in the offence; that a huge quantity of contraband charas was recovered and that the appellants dealing in the heinous business of selling narcotics which is destroying the whole humanity, deserve no leniency. To support his contentions he relied upon the case of Shah Muhammad v. The State (2012 SCMR 1276).
6. We have taken into consideration the arguments advanced by both the parties and carefully gone through entire record of the case.
7. Though the appellants have claimed their false implication in the case but they have failed to show any enmity of the prosecution witnesses with them, therefore, in view of such facts and circumstances, learned prosecutor contends that a huge quantity of charas may not be foisted upon the appellants and recovered narcotics could not have been planted by the raiding party due to unknown ulterior motives. More-so, the evidence available on record of the case do not show material contradictions among the depositions of examined prosecution witnesses. It may not be out of place to mention here that the globalization of drug abuse has become one of the gravest problems confronting humanity. The world, at large, has waged an admirable war against drugs. Many developed and developing countries have achieved remarkable results by making huge investments to check narcotics trafficking while simultaneously reducing the in-house demand for illicit substances. It may be advantageous to mention here that the Control of Narcotic Substances Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecution, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences. It provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences. Section 9 of C.N.S. Act, 1997 provides as under:-
"9. Punishment for contravention of sections 6, 7 and 8
Whoever contravenes the provisions of section 6, 7 or 8 shall be punishable with:-
(a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b):
Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."
8. Admittedly, in the present case huge quantity, i.e. (80) eighty kilograms charas, was recovered, which was in possession of appellants thus the quantity of narcotics exceeds ten kilograms and case falls in Clause (c) of section 9 of the Act, for which death penalty or imprisonment for life has been provided. We have observed the addicts of narcotics lying in streets and footpath adding more to the agonies of their poor parents, who are already grinding in poverty. Such addicts usually indulge in crimes of theft and even do not hesitate to steal the jewelry and house hold articles of their own house and houses of their kith and kin, therefore, the offenders dealing in the despicable business of narcotics, are enemies of the entire nation and require to be dealt with an iron hand. No enmity, ill-will or grudge has been alleged against the prosecution witnesses; on the contrary, sufficient material has brought by the prosecution on the record including report of Chemical Examiner relating to positive report of narcotic substance. The appellants had failed to bring anything on record that they had falsely been roped in the offence because of any rivalry with the official witnesses.
9. No defence evidence at all has been adduced and the appellants have also refused to record their statements on oath as provided under section 340(2), Cr.P.C., hence mere assertion of their false implication without any animosity with the raiding party is having no substantial value. In peculiar facts and circumstances of the case, we have no hesitation to say that the prosecution has succeeded to discharge the burden on its part and conversely the appellants have failed to rebut the same evidence as required under section 29 of the C.N.S. Act, 1997, to establish their innocence. From the facts and circumstances of the case, the prosecution had successfully proved its case against the convict/appellants. Learned trial Judge after thoroughly examining the material and relying upon the case laws, in its elaborate, well-reasoned judgment arrived at the conclusion that prosecution has proved the case against appellants and convicted them. The case laws cited by the learned counsel for the appellants are distinguishable to the facts and circumstances of the case. There is hardly any improbability or infirmity in the impugned judgment recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained.
10. By a short order dated 24.04.2018 the instant appeal was dismissed and above are the reasons for the said short order.
JK/S-42/Sindh Appeal dismissed.