IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Appeal No. D- 62 of 2017

Criminal Appeal No. D- 63 of 2017

Present :

Mr. Justice Khadim Hussain M.Shaikh,

Mr. Justice Amjad Ali Sahito,

Appellants : (1) Abdul Wahab s/o Ghous Bux Khoso

Through Mr. Ahmed Hussain Khoso, Advocate.

(2) Khan Muhammad s/o Loung Kandrani

Through Mr.Rafique Ahmed K. Abro, Advocate.

State : Through Mr. Khadim Hussain Khooharo, A.P.G.

Date of hearing : 02.05.2018.

Date of decision : 02.05.2018

J U D G M E N T

AMJAD ALI SAHITO, J.– This single judgment shall dispose of the aforementioned two appeals, which have been directed against the impugned judgment dated 22.11.2017, passed by learned Sessions/Special Judge (CNS) Jacobabad, whereby the above named appellants were tried jointly in a case arising out of Crime No.153/2016, for offence punishable under section 9 (c) of CNS Act, 1997, registered with P.S A-Section Thull, wherein appellant Abdul Wahab Khoso was convicted and sentenced to suffer imprisonment for 10 years and 06 months with fine of Rs.50,000/- and in default of payment of fine, to undergo S.I for 08 months more, while appellant Khan Muhammad Kandrani was convicted and sentenced to suffer imprisonment for 11 years and 06 months with fine of Rs.55,000/- and in default of payment of fine, to undergo S.I for 08 and 15 days more. However, the benefit of section 382-B Cr.PC was also extended to them.

2. Succinct story of the prosecution case, as unfolded in the F.I.R are that on 02.9.2016, a police party of CIA Unit-II, Thull, headed by ASI Izhar Ali left the CIA Unit in official mobile for patrolling in the area. After patrolling from various places, they reached at Khabar Curve at 1900 hours and noticed two persons alighting from a passenger bus carrying brief-cases in their hands, who on seeing the police party tried to slip away which aroused their suspicion and both were apprehended by them. Thereafter, PC Muhammad Ayoub and PC Munir Ahmed were cited as mashirs. On query, one of the accused disclosed his name to be Abdul Wahab son of Ghous Bux Khoso and the brief-case from his hand was taken into possession, it was opened and found containing 14 slabs of charas, which on being weighed was found to be 07 K.Gs and it was sealed as sample alongwith brief case, besides this a cash of Rs.800/- was also secured from him. The other person disclosed his name as Khan Muhammad son of Loung Kanrani, the bag taken from his possession was opened and found containing 16 slabs/patties of charas, the same was weighed which came out to be 08 K.Gs and 200 grams, the entire charas with brief-case was sealed as sample at the spot. A cash of Rs.400/- was also recovered from him. Both the accused were arrested under a memo of arrest and recovery in presence of mashirs PC Muhammad Ayoub and PC Muneer Ahmed and then the accused alongwith recovery were taken to Police Station, where the instant case for an offence punishable u/s. 9 (c) of the CNS Act, 1997, was registered against them on behalf of the State. Subsequently, Inspector/SIO Abdul Haq Qureshi of P.S A-Section Thull after observance of all the legal formalities submitted report u/s.173 Cr.PC before the competent Court of law.

3. A formal charge was framed against both the appellants(Exh.3), to which they pleaded not guilty and claimed trial.

4. At trial, the prosecution in order to prove its case examined complainant (PW-01) ASI Izhar Ali Shah at Exh.04, he produced joint arrival as well as departure entries at Exh.04/A and mashirnama of arrest and recovery at Exh.04/B. (PW-02) PC Muhammad Ayoub at Exh.05, he produced memo of inspection of place of incident at Exh.05/A. (PW-03) PC Irfan Ali at Exh.06, he produced roznamcha entry No.3, and road certificate bearing receipt of Chemical Examiner at Exh.06/A & B. (PW-04) Inspector/SIO Abdul Haq at Exh.07, he produced copy of roznamcha entry at Exh.07/A, report of Chemical Examiner at Exh.07/B, and FIR of the present case at Exh.-07/C. Thereafter, the prosecution closed its side vide statement at Exh.08.

5. The statements of appellants were recorded under section 342, Cr.PC, wherein they denied the prosecution allegations leveled against them and further stated that they have falsely been implicated in this case by police and lastly prayed for justice. However, none of them examined himself on oath in terms of Section 340(2) Cr.PC nor produced any witness in their defence.

6. The learned Trial Court, after hearing the counsel for the parties and appraisal of the evidence, convicted and sentenced the appellants, as stated above, vide impugned judgment dated 22.11.2017, which they have impugned before this Court by way of filling separate appeals.

7. Learned counsel for the appellants contended that the appellants are innocent and have falsely been implicated in this case by the police; that the recovery was allegedly effected from thickly populated area yet no any independent person from the vicinity was taken to witness the recovery proceedings, which was in clear violation of mandatory provision of Section 103 Cr.PC; that all the witnesses being police officials are subordinates to the complainant. They further contended that the conviction and sentences recorded by the learned trial Court may be set aside and thus lastly prayed for allowing of instant appeals.

8. Conversely, learned A.P.G for the State argued that the huge quantity of the charas has been secured from the possession of the appellants which cannot be foisted against them by the police at their own sources; that there is no ill-will or personal grudge of the police against the appellants to falsely implicate them in this case. He thus supported the impugned judgment passed by learned trial Court and lastly prayed for dismissal of the instant appeals.

9. We have heard the learned counsel for the parties and have perused the record with their assistance.

10. We have carefully gone through the evidence of both the eyewitnesses and find no contradictions and discrepancies in their statements. It is worth to mention that the suggestions put to P.W PC Muhammad Ayoob were not put to complainant ASI Izhar Ali, so we do not find that any answer to the question of the learned counsel for the appellants benefiting them and discredit the statements of the witnesses. As regard the contention of learned counsel for the appellants for non-performance of provision of Section 103 Cr.PC is concerned, it would be appropriate to refer Section 25 of the Control Substance 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 section 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections.”

In view of the above provision of law, applicability of Section 103 Cr.PC in narcotic cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate the conviction and thus the evidence of police officials would be competent and their evidence cannot be discarded, merely for the reasons that they are police officials. They have furnished straight forward and confidence inspiring evidence and there is nothing on record to show that they deposed against the appellants maliciously or out of any animus. So far as the independent witnesses is concerned, it has been time and again observed that people do not cooperate and give consent to be cited as a witnesses of recovery because it invites annoyance of the people relating to drug mafia. In such Police witnesses are good witness until and unless malafide is established against them and the instance case involving recovery of 07/08 KGs and 200 grams of Charas and it is hardly believable that police official would plant such huge quantity of narcotics upon the appellants from their own sources more particularly when no malafide or animosity has been established by the appellants. Reference may well be made to the case of Muhammad Sarfaraz v. the State (2017 SCMR 1874): wherein it is held that;

“The arguments regarding applicability of section 103, Cr.PC. has no force as section 25 of the Act had ousted the applicability of section 103, Cr.PC. in the cases of narcotics.”

Reliance may also be placed on another case reported in 2017 SCMR 283 (Re-State/ ANF v. Muhammad Arshad) wherein the Honourable Supreme Court of Pakistan has held that:-

“.. 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, 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 to falsely implicate an accused or has previous enmity with the person involved.

11. It is settled principle of law that mere fact that prosecution witnesses belonged to police officials by itself cannot be considered as valid reason to discard their statements, the 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 prosecution witnesses thus in absence thereof the competence of prosecution witnesses regardless of their being officials was rightly believed.

12. From the perusal of record it appears that the appellants were caught red-handed and narcotic was recovered from their possession, which entirely sealed as sample at the spot and sent for the chemical analysis. The report of the chemical examiner received in positive. These are always sufficient to conclude that prosecution successfully discharged its burden thereby shifting the burden upon the accused within meaning of Section 29 of the Act. Such burden would require the accused to firstly cause dent in prosecution case and secondly to establish least justify possibility of false implication or foisting the huge quantity of charas.

13. In the instant matter, the recovery witnesses remained consistent on each and every aspect of the case such as manner of departure till arrest and recovery of charas. The (PW-01) complainant ASI Izhar Ali and (PW-02) PC-Muhammad Ayoub were cross-examined at length by the learned counsel for the appellants but no material contradiction was extracted from them. Furthermore, (PW-03) PC Irfan Ali took the sample to the chemical laboratory and there is no evidence that there was any tampering with the case property. (PW-04) SIO Abdul Haq investigated the case. Thus, no enmity, ill-will or grudge has been proved against the prosecution witnesses, for falsely implication of the appellants in this case. The evidence of all witnesses has been proved with the opinion of the chemical examiner, which leads to an inference that the prosecution has proved the guilt against the present appellants beyond shadow of doubt.

14. The over-all discussion involved a conclusion that as sufficient material is available in shape of unimpeachable ocular evidence of complainant supported by Mashir/witnesses on the point of recovery, coupled with mashirnama of arrest and recovery, positive report of Chemical Examiner and production of roznamcha entries showing the movement of police, for establishing the guilt against the appellants, therefore, we are of the humble view that the learned trial Court has rightly convicted and sentenced the appellants, which do not call for any interference by this Court and the same are maintained. However, the quantum of sentence awarded to appellant Abdul Wahab Khoso is modified and reduced as per sentencing policy enumerated in the case of Ghulam Murtaza v. The State (PLD 2009 Lahore-362), from 10 years and 06 months to 09 years and 06 months and fine from Rs.50,000/- to Rs.45,000/-. In case of non-payment of fine, he shall further undergo S.I for 07 months and 15 days more. With above modification, the instant appeals are dismissed.

16. These are the reasons of short order dated 02.05.2018 announced by us.

JUDGE