ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Jail A. No.D-81 of 2016
Date
Order
with signature of Judge
For
hearing of main case
BEFORE Mr. Justice Abdul RasoolMemon
J;
Mr. Justice Irshad Ali Shah J;
10.05.2018
Mr.MiranBuxSharAdvocate
for appellant
Mr. Zulfiqar
Ali JatoiAPG
.,.,.,.,.,.,.,.,.,.,.,
IRSHAD
ALI SHAH J;- The appellant by way of instant appeal
has impugned judgment dated 8.4.2016 of learned Ist.
Additional Sessions Judge/ CNS Judge Khairpur whereby
he has been convicted and sentenced to undergo imprisonment for life and to pay
fine of Rs.100,000/-with direction that in case of his failure to make payment
of fine, he would undergo simple imprisonment for period of one year.
2. The facts in brief
necessary for disposal of instant appeal are that on 25.5.2011 the police party
of PS Khenwari led by SIP Nazir
Ahmed when was conducting checking adjacent to PirBux
Petrol pump, there at about 2300 hours they found the appellant coming in white
colour car bearing registration No.ATL 843. On search
there from was secured one plastic shopper containing 01 K.G of Heroin Powder
and two ‘Bachkas’ each one was found containing 30
packets of charas, each packet was weighed to be one kilogram,
total 60 Kilograms. A mashirnama of arrest and
recovery was prepared at the spot. The appellant with the recovery so made from
him then was taken to PS Khenwari. The FIR of the
present case was registered against him and he after usual investigation was challanedto face trial for the above said offence.
3. At trial the appellant
pleaded not guilty to the charge. The prosecution in order to prove its case,
examined PW-1/complainant SIP NazirAhmed, produced
through him ‘roznamcha’ entries relating to his
departure and arrival at PS Khenwari, mashirnama of arrest and recovery and FIR of the present
case. PW-2/mashir ASI GhulamQasim, produced
through him mashirnama of place of incident. PW-3/SIO
SIP Ahsan Ali produced through him ‘roznamcha’ entries relating to his departure and arrival at
PS Khenwari, his letter to Senior Superintendent of
Police Khairpur (whereby he sought for permission for
dispatching the case property to chemical examiner)and
report of chemical examiner. Thereafter prosecution closed the side.
4. The appellant during course
of his examination u/s 342 Cr.PCdenied the
prosecutions’ allegation by pleading innocence by stating that he sold his car
allegedly involved in the present case to complainant SIP Nazir
Ahmed, he was not making payment of remaining sale consideration to him, he (appellant)
then made such complaint with Senior Superintendent of Police Khairpur, which annoyed the complainant and he then
involved him in this case falsely. By stating so, he produced agreement relating
to sale of car involved in this case and photo copy of his complaint which he
allegedly made with Senior Superintendent of Police Khairpur
against the complainant.
5. The appellant examined
himself on oath. His evidence was in line to what he has already stated during
course of his examination u/s 342 Cr.PC. In support of
his plea the appellant examined DW Habibullah in his defence. It was inter alia stated by DW Habibullah
that the appellant sold his car to the complainant.
6. On evaluation of evidence so
produced, learned Ist.
Additional Sessions Judge/CNS Judge Khairpur
convicted and sentenced the appellant as stated above.
7. It is contended by learned
counsel for the appellant that the charge which was framed against the
appellant was defective one, which has vitiated the trial. By contending so, he
sought for remand of the case.
8. Learned APG,while making reference to Section 537 Cr.PCcontended that; no sentence could be reversed by
reason of error or omission in the charge. By contending so, he supported the
impugned judgment.
9. We have considered the
above arguments and perused the record.
The importance
thereof is further evident from subsection (4) of Section 221 which reads as:-
(4) The
law and section of the law against which the offence is said to have been
committed shall be mentioned in the
charge;
11.Section 222 Cr.PC provides that
charge shall contain such particulars as to
time and place of alleged offence and person (if any) against whom, or the thing (if any) in respect of which it
was committed, as are reasonably sufficient to give the
accused notice of the matter with which he is charged. We are quite conscious
that normally an otherwise legally
conducted trial is not be regarded as illegal merely for error in
stating the offence or other particulars but when such error or omission is
claimed to have misled or prejudiced the accused, so as is
evident from section 225 which reads as:-
225.
Effect of errors. No error in stating
either the offences or the particulars required to be stated in the charge, and
no omission to state the offence or those particulars, shall be
regarded at any stage of the case as material, unless the accused was
in fact misled by such error or omission, and it has occasioned a failure
of justice.
12.
However, when such error or
omission is claimed to have misled
or prejudiced the accused then such error or omission, being
in deviation to guaranteed fundamental right of fair trial (Article 10-A
of Constitution), would be sufficient for amending / altering charge during
course of trial or if trial is concluded for remand thereof. Every claim of
failure of justice because of act of Court, if is appearing to be carrying
weight, then it would always be advisable to ensure fair trial. Reference
in that respect if need be may well be placed upon the case of M. Younus Habib v. State, which is reported at PLD 2006 SC 153, wherein it has been
held as under:-
“4. The
Criminal Procedure Code lays down an elaborate procedure for framing of the
charge and the rationale is that the accused should know the exact nature
of the accusation made against him so that he may give a proper reply
and is not misled by any vagueness in the accusations leveled. …
“6. …..they could warrant annulling of the finding of conviction
justifying retrial only if the accused (a) had been misled by it and (b) if it
had occasioned miscarriage of justice. …
13.
Keeping the above
legal position in view, now for proper examination of plea of appellant,
it would be appropriate to refer the charge, so framed against him by learned trial
Court, which reads as follows:-
“That
on 26,5.2011 at 2300 hours at link road leading from Choondko
to Sanghar near patrol pump of Fakir Pir Bux Gaho,
you were apprehended by the police
party of PS Khenwari
headed by SIP Nazir
Ahmed Katbar and recovered two Bachkas
containing 30 slabs of charas in each Bachka and one plastic shopper containing one kilogram
heroin from your possession in contravention of 6 &8 of Control
of Narcotics Substance Act 1997 and thereby you have committed offence
punishable u/s 9 (c) of CNS Act 1997 and within the cognizance of this
court."
(a)
organize manage, traffic in, or finance the trafficking
of narcotic drugs, psychotropic substances or controlled substances; or
(b)
…..
16. The charge, so framed by learned trial
Court, though includes section 8 of CNS
Act but not a single particular in that respect was mentioned therein which
include the vehicle whereby or through which such attempt of trafficking
narcotics was being made by the appellant allegedly. A reference to section
32(2) of the CNS Act would make importance of mentioning of vehicle for offence
under Section 8 of the CNS Act. The same is reproduced as:-“
(2) Any narcotic drug, psychotropic substance or
controlled substance lawfully imported, manufactured, possessed, or sold alongwith, or in addition to, any narcotic drug,
psychotropic substance or controlled substance which is liable to confiscation
under subsection (1) and the
receptacles
or packages, and the vehicles,
vessels and other conveyances, used in carrying such drugs and substances shall likewise be liable to confiscatin.
Provided
that no vehicle, vessel or other conveyance
shall be liable to confiscation unless it is proved that the owner thereof knew
that the offence was being, or was to be committed;
17. It may also be added here that for proving a
charge of recovery from physical possession is different
from that of proving a charge of conscious possession in matter
relating to trafficking of narcotics. In later case, the prosecution is also to
prove conscious knowledge of accused
(trafficker) which however is to be
presumed in former case.
18. In case of Zahoorawan& another v. State,which is reported at1997
SCMR 543, it was observed by Hon’able Supreme Court of
Pakistan that;
“ ………………. The argument
being impressive, is tenable inasmuch as prosecution
did not produce evidence to demonstrate that it was in the exclusive knowledge
of the appellants that heroin was kept in the truck wherein they were
traveling… Their presence in the
truck could not be held to be enough to convict them where it was not
proved through reliable evidence that the appellants were transporting a
forbidden article. No such evidence was led against the appellants during
trial.”
19. In case of Muhammad Noor & others v.
State, which is reported at 2010 SCMR 927, it was observed by Hon’able Supreme Court of Pakistan that:-
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 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 Punja
AIR 1973 SC 2309.
20. In case of Mst. Jameela&
another v. State, which is
reported at PLD 2012 SC 369, it
was observed by Hon’able Supreme Court of Pakistan that;
4. It
is not disputed that the appellant was not driving the vehicle in question at
the relevant time and according to the prosecution itself the appellant was
sitting long with another lady on the rear seat of the vehicle at the time of
its interception by the police party. It is also the prosecution’s own case
that nothing had been recovered form the appellant’s
physical possession and that the narcotic substance and weapons recovered in
this case had been recovered from some secret cavities of the motorcar and also
fromthe boot of the same. The law of the subject
is quite settled that mere presence of a passenger in a vehicle cannot be
treated as sufficient to saddle him with the responsibility of possession of
narcotic substance recovered from the vehicle unless the prosecution
establishes through independent evidence that such passenger was conscious and
aware of availability of narcotic
substance in the vehicle.
21.In
view of above, failure of learned trial court in mentioning the weight of the charas lying the Bachkas and particulars of trafficking of narcotics cannot be regarded as mere error or omission as same arenot found sufficient
to let the appellant know the exact
nature of accusationagainst
him, such error or omission apparently has caused serious failure of justice as
such it is not curable u/s 537 Cr.PC.
“Any piece of evidence not put to an accused person at the
time of recording of his statement u/s 342 Cr.PC
could not be considered against him.”
JUDGE
JUDGE
Rafi