IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No.D-59 of 2017
Present:
Mr. Justice Khadim Hussain M. Shaikh
Mr. Justice Amjad Ali Sahito
Appellants : (01). Rais Khan s/o Laiq Khan Pathan, r/o Mardan,
(02). Motbar Khan s/o Mir Khan Pathan,
r/o Khyber Agency,
(03). Khalid son of Syed Nabi
(04). Khayal Akbar son of Syed Nabi
Both by caste Pathan, r/o Jamrood.
Through Mr.Rashid Mustafa Solangi, Advocate.
State : Through Mr.Abdul Waheed Bijarani, Asstt.P.G
Date of hearing : 09.05.2018.
Date of decision : 09.05.2018.
J U D G M E N T
Amjad Ali Sahito, J.– Appellants named above were tried by learned Sessions Judge, Kashmore @ Kandhkot, in C.N.S Case No.14/2017, St.Vs.Rais Khan and others, for offence punishable under section 9(c) of Control of Narcotics Substance Act, 1997, arising out of Crime No.01/2013 registered with Excise P.S Kandhkot Circle, whereby they were convicted and sentenced for an offence punishable under section 9(c) of Control of Narcotics Substance Act, 1997, to suffer imprisonment for life and to pay fine of Rs.100,000/-(One Lac) each and in case of default in payment of fine, to suffer S.I for one (01) year more. However, benefit of section 382-B Cr.PC was also extended to them.
2. The case of the prosecution as depicted in the FIR is that on 23.02.2013, complainant Inspector Abdul Hameed Bughio alongwith his subordinate staff left Excise P.S Kandhkot Circle with official ammunition and investigation kit, under roznamcha entry No.01, for patrolling. At about 02.00 p.m, they started checking at Check Post Kashmore situated at Indus Highway near Wardik Petrol Pump, in the meanwhile they stopped one Truck/Troller with its Container bearing Registration No.LSA-6709, coming from Kashmore side, who was got to halt, in which four persons including its driver were sitting. All of them were de-boarded from the said Truck/Troller and were enquired about their identity, to which one of them sitting on driving seat disclosed his name to be Rais Khan son of Laiq Khan Pathan, r/o Dadkhel Mardan, who revealed himself as first driver of the said Truck. The other person named Motbar Khan son of Meer Khan Pathan r/o Khyber Agency disclosed himself to be the second driver of the said truck. The third person disclosed his name to be Khalid son of Syed Nabi, r/o Jamrood, while the fourth person revealed his name to be Khayal Akbar son of Syed Nabi, r/o Jamrood. Thereafter EC Ashif Ali and EC Zaffar Ali were cited as mashirs and bodily search of the accused was conducted. A cash of Rs.2000/-, driving license and original CNIC was secured from first driver named Rais Khan, while a cash of Rs.1000/- including CNIC was secured from accused Motbar Khan. A cash of Rs.200/- and CNIC was secured from accused named Khalid while a copy of CNIC was secured from fourth accused named Khayal Akbar. On enquiry from its driver about the said Truck/Troller with its container, to which he disclosed it to be empty. Thereafter, the driving cabin of the said Truck was searched and found containing a registration book in the name of Ashraf Khan s/o Haji Zarif Khan bearing No.LSA-6709. On further search of Truck/Troller, one Diesel oil tank was found, which on opening contained a secrete cavity, it was opened and found with packets containing charas, which were taken out and counted to be 49 in numbers. Each packet of the Charas was weighing to be 01 K.G, making a total of 49 K.Gs. Of them, nine packets were segregated as sample for chemical analysis while the remainder was also sealed separately in a sack at the spot. Such mashirnama of arrest and recovery was prepared at the spot, which was signed by the above named mashirs. Thereafter the accused alongwith recovered case property were taken to Excise Police Station, where the instant case for an offence punishable u/s.9(c) of Control of Narcotic Substance Act, 1997, was registered against them on behalf of the State. On completion of the usual formalities, the Excise police submitted report u/s.173 Cr.PC before the competent Court of law.
3. The learned trial Court on 16.04.2013 framed a charge against the appellants at Exh.06, to which they pleaded not guilty and claimed trial.
4. At the trial, in order to establish the accusation against the appellants, the prosecution examined the following witnesses;-
(i) PW-01 Complainant/Excise Inspector Abdul Hameed Bughio at Exh.12, he produced memo of arrest and recovery at Exh.12/A, FIR at Exh.12-B, chemical examiner’s report at Exh.12-C and joint roznamcha entry No.1 & 2 at Exh.12/D respectively.
(ii). PW-02 Mashir/E.C Ashiq Ali at Exh.13.
Both these witnesses were cross examined by the learned counsel for the appellants. Thereafter, the learned incharge DPP for the State closed the prosecution side vide statement at Exh.14.
5. Statements of the appellants were recorded u/s.342 Cr.PC at Exh.15 to 18 respectively, in which they denied the prosecution allegations and further stated that they are innocent and lastly prayed for justice. However, the appellants did not examine themselves on oath in terms of Section 340(2) Cr.PC, nor led any evidence in their defense.
6. The learned trial Court after hearing the parties counsel and on assessment of the evidence, convicted and sentenced the appellants, as stated above, vide judgment dated 07.11.2017, which they impugned before this Court by way of filing instant appeal through jail.
7. Mr.Rashid Mustafa Solangi, Learned Counsel for the appellants contended that the appellants No.1 and 2 being driver of the Truck/Troller and appellants No.3 and 4 being its passengers are innocent and had no knowledge about the availability of charas in the vehicle; that the complainant and PWs being excise officials are interested and set-up witnesses; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in the present case; that all the witnesses are excise officials and no independent person has been cited as mashir of arrest and recovery, which is in clear violation of mandatory provision of Section 103 Cr.PC; that the complainant himself has conducted investigation of this case and there are so many contradictions in the evidence of prosecution witnesses. He lastly contended that the prosecution has failed to prove its case against the appellants; thus according to him under the above mentioned facts and circumstances, the appellants are entitled for their acquittal.
8. On the other hand, Mr.Abdul Waheed Bijarani, Assistant Prosecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellants who were found transporting huge quantity of narcotic substance which was secured from the cavity of Truck/Troller driven by them; that the excise officials had no enmity to foist such a huge quantity of charas upon the appellants at their own; he thus lastly prayed for dismissal of instant appeal.
9. We have heard learned counsel for the appellants, learned Assistant Prosecutor General for the State and have minutely gone through the record with their able assistance.
10. It has borne out from the record that 49 K.Gs of Charas was recovered from the secrete cavity of Truck/Troller with container, which was driven by appellants Rais Khan and co-driver Motbar Khan, who are said to be residents of Mardan and Khyber Agency, but they were arrested at Excise Check Post Kashmore, at Indus Highway near Wardik Petrol Pump, prior to their arrival at destination, hence both the appellants are found responsible for transportation of huge quantity of narcotics having prior knowledge of the narcotics substance in their vehicle. While rest two appellants namely Khalid and Khayal Akbar were said to be sitting therein. It is nowhere mentioned or suggested by learned counsel of the appellants that the said Truck/Troller was either hired by someone else or they had no knowledge about the availability of narcotics substance in it. In such situation, it cannot be believed that such huge quantity of Charas was kept in the secrete cavity of the vehicle without prior knowledge of its driver, which undeniably remained in possession and control of both the appellants all the way from Khyber Agency to the place of recovery, rather they being its drivers were fully responsible for transporting of such huge narcotics substance in their Truck/Troller. It is quite incredible that the appellant No.1 Rais Khan left his province with a Truck/Troller having container driving himself lonely for another province without support of any other driver, hence the verbatim of appellant No.2 being second driver of the Truck/Troller cannot be disbelieved. The reliance in this context is placed upon case of Kashif Ameer vs. The State(PLD 2010 SC-1052), wherein the Hon’ble Supreme Court of Pakistan has held that;
It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State(2010 SCMR-927). Similarly, in the case of Nadir Khan v. The State (1988 SCMR-1899). This Court has observed that knowledge and awareness would be attributed to the incharge of the vehicle. Another aspect of the case is that once the prosecution has prima facie established its case then under section 29 of CNSA burden shifted upon the accused to prove contrary to the plea of the prosecution. Reliance in this behalf may be made to the case of Ismaeel v. The State(2010 SCMR-27). Wherein, this Court while relying upon the cases of Muhammad Arshad v. The State(2007 SCMR-1378) and Mst.Taj Bibi v. The State(2007 SCMR-1591) has held that chemical examiner’s report regarding Charas and Opium were sufficient to prove that the substance recovered from the accused was Charas which can be used to cause intoxication; the prosecution had discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms, of Section 29 (d) of CNSA.
11. As regard the arguments of learned counsel for the appellants regarding violation of Section 103 Cr.PC is concerned, it would be appropriate to refer section 25 of the Control of Narcotics 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 Cr.PC 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.
12. It means that applicability of section 103 Cr.PC in the narcotics cases has been excluded and none inclusion of any private witness is not a serious defect to vitiate the conviction. So far the evidence of excise officials is concerned, they are competent and their evidence cannot be discarded, only for the reason that they are excise officials. They have furnished straight forward and confidence inspiring evidence, there is nothing on the record to show that they have deposed against the appellants maliciously or out of any animus and it cannot be believed that the excise officials would plant such a huge quantity of narcotics viz.49 K.Gs against the appellants at their own sources. It is settled principle of law that the prosecution witnesses belong to police officials by itself cannot be considered as a valid reason to discard their statement. The reference in this context is made to the case of Zaffar vs. the State(2008 SCMR-1254), the Hon’ble Supreme Court of Pakistan has held that;-
“Police employees are the competent witnesses like any other witnesses and their testimonies cannot be discarded merely on the ground that they are police officials”
13. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been brought on the record, thus in absence thereof, the competence of prosecution witnesses being officials was rightly believed. Moreover, a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected, then mere procedural omission and even allegation of improper conduct of investigation would not help the accused. The reference in this context is made to the case of the State/ANF vs. Muhammad Arshad(2017 SCMR-283), wherein the Hon’ble 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”.
14. Even otherwise, mere status of one as official would not alone prejudice the competence of such witnesses until and unless he is proved to be interested, who has motive, to falsely implicate an accused or has previous enmity with the person involved. The reliance in this context is made to the case of Farooq v. The State(2008 SCMR-970).
15. It is now settled proposition of law that by flex of time 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 the 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 vs. The State reported in PLD 2006 SC-61 has held that;-
“S. 9(c)---Appreciation of evidence.---No acquittal on technicalities---Court in such like cases are supposed dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities.”
16. It is pertinent to mention here that chemical examiner’s report regarding Charas is sufficient to prove that the substance recovered from the appellants can be used to cause intoxication and the prosecution has discharged its initial onus while proving that substance was recovered from the secret cavity of Truck/Troller in possession and control of appellants Rais Khan and Motbar Khan being its drivers respectively, for which both the appellants have failed to discharge their burden in terms of Section 29 of Control of Narcotics Substance Act 1997, which is reproduced herein below for ready reference;-
“29. Presumption from possession of illicit articles.—In trials under this Act, it may be presumed, unless and until the contrary is proved, that he accused has committed an offence under this Act in respect of—
(a) Any narcotic drug psychotropic substance or controlled substance;
(b) Any cannabis, coca or opium poppy plant growing on any land which he has cultivated.
(c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily.
(d) any material which have undergone any process towards the production or manufacture of narcotic drug”
17. From the perusal of section 29 of Control of Narcotics Substance Act 1997, it is evident that where the prosecution prima facie proves recovery from the accused, then the Court is required to presume that the accused is guilty unless he proves that he was not in possession of such drugs. Meaning thereby the burden then would be upon the accused to establish his innocence and absolve himself from the allegations regarding recovery of narcotics substance, while the prosecution has only to show by evidence that the accused was in custody or directly concerned with recovered narcotics substance. In the instant case, the Charas recovered from the secrete cavity of Truck/Troller stood establish, hence it was the turn of the appellants to have proved contrary. Without such proof, the accused will be held guilty by virtue of Section 29 of Control of Narcotics Substance, 1997.
18. So far the plea raised by learned defense counsel that the complainant has acted as investigating officer in this case and all the witnesses are excise officials, is of no help to the appellants. The reliance in this context is placed upon the case of The State v. Zaffar (2008 SCMR-1254), wherein the Hon’ble Supreme Court of Pakistan has held that;-
“Police officials are not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an investigating officer, so long as it does not in any way prejudice the accused person”.
19. Though, the investigation officer and other prosecution witnesses are excise officials but they have no enmity or rancor against the appellants to plant such huge quantity of narcotics substance against them. The defense has not produced any evidence to establish animosity qua the prosecution witnesses. In matters of huge quantity of narcotics, the absence of enmity or any valid reason for false involvement would also be circumstances tilting the case against the accused. The reliance is made on the case of Salah-ud-Din vs. The State, reported in 2010 SCMR-1962, wherein the Hon’ble Supreme Court of Pakistan has held that;-
“….No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motives which was never alleged. In view of overwhelming prosecution evidence the defense version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reasons…”
20. Here, all the witnesses have deposed in same line to support the prosecution case and despite cross examined by learned defense counsel at length, the defense has failed to point out any dent or to extract any material contradiction fatal to prosecution case. It would be pertinent to mention that the learned trial Court has convicted all the appellants to imprisonment for life. We find that during the course of investigation, the I.O had sent only nine packets weighing to be 09 kilograms of charas for the chemical analysis, and such report was received in positive while neither any sample was taken out from the remaining charas for chemical analysis, nor was any report received from the laboratory to certify it to be charas. We have gone through the case of Ghulam Murtaza and another v. The State reported in PLD 2009 Lahore 362, wherein the learned full bench of Lahore High Court, regarding recovery of Charas exceeding 08 K.Gs upto 09 K.Gs, approved the sentence as follows:-
|
Charas |
Exceeding 08 KGs up to 9 K.Gs |
Imprisonment: R.I for 11 years & 06 months and Fine: Rs.55,000/- or in default to undergo 08 months & 15 days more. |
The above judgment of the Lahore High Court was impugned before the Hon’ble Supreme, where the larger Bench upheld the same as reported in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court-380).
21. It would be pertinent to mention here that the case of appellants Khalid and Khayal Akbar(both brothers inter-se), is different from the case of appellants Rais Khan and Motbar Khan. According to the prosecution case, the appellants Khalid and Khayal Abkar were sitting along with drivers at the time of its interception by the excise police and nothing had been recovered from their physical possession but to a secret cavity of the Truck/Troller. It is settled principle of law that mere presence of a passenger in a vehicle cannot be treated sufficient to saddle him with the responsibility of possession of narcotic substance recovered from the vehicle unless the prosecution establish through evidence that such passenger was conscious and aware of availability of narcotic substance in the vehicle.
22. On our evaluation of the evidence of complainant/Excise Inspector Abdul Hameed Bughio and mashir/EC Ashiq Ali, we find it confidence inspiring and trustworthy; the appellants No.1 and 2 namely Rais Khan and Motbar Khan being drivers were transporting the huge quantity of Charas in Truck/Troller bearing registration No.LSA-6709, were arrested at Indus Highway Kashmore near Wardik Petrol Pump. The version of the complainant/Excise Inspector Abdul Hameed Bughio has been fully corroborated by mashir of arrest and recovery, which is substantiated with memo of arrest and recovery, FIR as well as roznamcha departure and arrival entry showing their movement and positive chemical examiner’s report. No enmity, ill-will or grudge has been alleged or proved against prosecution witnesses to implicate the appellants falsely in this case.
23. Considering the above facts and circumstances of the case, we are of the humble view that the prosecution has failed to establish the guilt against the appellants No.3 and 4 namely Khalid and Khayal Akbar, thus, the appeal to the extent of the said appellants is allowed, the conviction and sentence awarded to them by learned trial Court are set-aside and they are acquitted of the charge by extending them benefit of doubt. While the prosecution has succeeded to bring home the guilt against the appellants No.1 and 2 namely Rais Khan and Motbar Khan Pathan, therefore, the learned counsel for the appellants No.1 and 2 has failed to point out any material illegality or infirmity committed by the learned trial Court while recording conviction against them, which is based on appreciation of evidence, therefore, the same does not call for any interference by this Court. However, the quantum of sentence awarded to appellant No.1 and 2 is modified and reduced as per sentencing policy enumerated in the case of Ghulam Murtaza v. The State (PLD 2009 Lahore-362), from life imprisonment to 11 years and 06 months and fine from Rs.100,000/- each to Rs.55,000/- each. In case of non-payment of fine, they shall further undergo S.I for 08 months and 15 days more. With above modification, the appeal to the extent of appellants No.1 and 2 namely Rais Khan and Motbar Khan Pathan is dismissed.
24. These are the detailed reasons of short order dated 09.05.2018 announced by us.
J U D G E
J U D G E -