IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.D-41 of 2015

Present:

Mr. Justice Muhammad IqbalMahar.

Mr. Justice Amjad Ali Sahito.

Appellant : Sartaj Khans/oSardar Khan,Mahmad Pathan by caste, Presently confined in C.P-I Sukkur.

Through Mr. Abdul Baqi Jan Kakar, Advocate.

State : Through Mr. Zulfiqar Ali Jatoi, Additional P.G

Date of hearing : 06.08.2018.

Date of decision : 06.08.2018.

J U D G M E N T

Amjad Ali Sahito, J.–Appellant named above was tried by learned Sessions Judge, Ghotki, in Special Case No.44/2013, St.Vs. Sartaj Khan, for offence punishable under section 23(i) (a) of Sindh Arms Act, 2013, arising out of Crime No.13/2013registered with Excise P.S DIO Camp Ubauro, whereby, he was convicted and sentenced for an offence punishable under section 23(i) (a) of Sindh Arms Act, 2013, to suffer R.I. for ten years and to pay fine of Rs.50,000/= and in case of default in payment of fine, to suffer S.I for three(03) months more. However, the benefit of section 382-B Cr.PC was also extended to him.

2. The case of the prosecution is that on 08.10.2013 at about 10:00 pm, Excise Police Narcotics found that one Truck trailer in a high speed was coming from Sindh-Punjab Border which was stopped by the Excise Police, the search of the Truck trailer was made from the cavity of the said Truck trailer 35 Kilogram Charas as well as one DBBL Gun, one pistol recovered from the possession of appellant and bulk of arms and ammunition viz. three pistols with a Magazine and three Magazines of 30 bore, one automatic rifle, ten Kalashnikovs, with ten Magazines, 4000 bullets of Kalashnikovs, five bullets of Pistols of 30 bore were recovered from the secret cavity of TruckTrailer with container. The accused had no license for the weapons. Thereafter EJ Zarar Ahmed and EC Abdul Sattar were cited as mashirs and bodily search of the accused was conducted. A cash of Rs.5500/-, Computerized driving license, and original CNIC was secured, a search of the truck trailer was made. After completing the necessary formalities, a search of dash board was made from which, Registration Book and Route permit in the name of Muhammad Ismail was recovered. Such mashirnama of arrest and recovery was prepared at the spot, which was signed by the above-named mashirs. Thereafter the accused along with recovered case property were taken to Excise Police Station, where the instant case was registered bearing crime No.13/2013 and another F.I.R. bearing Crime No. 12/2013 for an offence punishable u/s.9(c) of Control of Narcotic Substance Act, 1997, was also registered against him 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 01.02.2013framed a charge against the appellant at Exh.06, to which he pleaded not guilty and claimed trial.

4. At the trial, in order to establish the accusation against the appellant, the prosecution examined the following witnesses;-

(i) PW-01 Complainant/Excise Inspector Abdul Rasool Junejo at Exh.09, he produced memo of arrest and recovery at Exh.09-A, departure entry No.1 dated 07.10.2013 at Exh.9-B, arrival Roznamcha entry No.1 dated 08.10.2013 at Exh.09-C, FIR at Exh.09-D.

(ii).PW-02 Mashir/E.J Zarar Ahmed at Exh.10.

Both these witnesses were cross-examined by the learned counsel for the appellant. Thereafter, the learned DDPP for the State closed the prosecution side vide statement at Exh.11.

5. Statement of the appellant was recorded u/s.342 Cr.PC at Exh.13, in which he denied the prosecution allegations and further stated that he is innocent and lastly prayed for justice. However, the appellant did not examine himself on oath in terms of Section 340(2) Cr.PC, but, examinedDW-1 Gul Billand in his defence and then his counsel closed his side vide statement dated 24.09.2014 at Exh.14.

6. The learned trial Court after hearing the parties counsel and on assessment of the evidence, convicted and sentenced the appellant, as stated above, in both F.I.Rs., vide judgment dated 23.04.2015, which he impugned before this Court by way of filing a separate appeal.

7. During the pendency of the instant appeal learned Additional P.G submitted that the main case is pending before Divisional Bench of this Court and thus is offshoot of the said case, hence by order dated 22.05.2017, that it will be proper this appeal is heard along with the appeal arisen from the main case. As such instant appeal was fixed along with Criminal Appeal No.D-40/2015 after hearing the learned counsel for the appellant and learned Additional P.G the appeal No.D-40 of 2015 was dismissed by us vide short order dated 06.08.2018.

8. Mr. Abdul Baqi Jan Kakar, Learned Counsel for the appellant contended that the appellant being driver of the Truck Trailer is innocent and had no knowledge about the availability of charas, arms, and ammunition 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. He lastly contended that the prosecution has failed to prove its case against the appellant; thus according to him under the above-mentioned facts and circumstances, the appellant is entitled to his acquittal.

9. On the other hand, Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant who was found transporting bulk arms ammunition along with a huge quantity of narcotic substance, which was secured from the cavity of Truck Trailer driven by him; that the excise officials had no enmity to foist such a huge quantity of charas as well as arms and ammunition upon the appellant at his own; he thus lastly prayed for dismissal of instant appeal.

10. We have heard learned counsel for the appellant, learned Additional Prosecutor General for the State and have minutely gone through the record with their able assistance.

11. It has borne out from the record that bulk of arms ammunition viz. one DBBL Gun, one pistol recovered from possession of accused/appellant, three pistols with a Magazine and three Magazines of 30 bore, one automatic rifle, ten Kalashnikovs, with ten Magazines, 4000 bullets of Kalashnikovs, five bullets of Pistols of 30 bore and huge quantity viz. 35 K.Gs of Chars were recovered from the secret cavity of Truck Trailer with container, which was driven by appellant Sartaj Khan, who is said to be resident of Peshawar, but he was arrested at Sindh-Punjab Border near Kamoon Shaheed, at Highway, hence the appellant is found responsible for transportation of huge quantity of narcotics and arms ammunitions having prior knowledge of the narcotics substance and arms ammunition in his vehicle. It is nowhere mentioned or suggested by the learned counsel of the appellant that the said TruckTrailer was either hired by someone else or he 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 secret cavity of back side of cabin of the vehicle without prior knowledge of its driver, which undeniably remained in possession and control of the appellant all the way from Peshawar to the place of recovery, rather he being its driver was fully responsible for transporting of such arms ammunition and huge quantity of narcotics substance in his Truck Trailer.

12. To substantiate the case against the appellant, complainant Abdul Rasool Excise Inspector, who has seized/secure bulk of arms ammunition along with huge quantity of charas viz 35 K.Gs were recovered from the secret cavity of the Truck. He has produced a carbon copy of Mashirnama of the place of incident, arrest, and recovery in presence of mashirs EJ Zarar Ahmed and EC Abdul Sattar. He has also produced arrival and departure entries, which shows his movement by leaving Excise police station to the place of recovery, his version was fully supported by the PW/2 EJ Zarar Ahmed who deposed in the line of the complainant. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been brought on the record, thus in the 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”.

13. 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 a motive, to falsely implicate an accused or has the previous enmity with the person involved. The reliance in this context is made to the case of Farooq v. The State (2008 SCMR-970).

14. It is now settled proposition of law that by flex of time in the case of transportation or possession of huge arms ammunition, which apparently can be used for terrorism as such 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.

15. Though the investigation officer and other prosecution witnesses are Excise officials they have no enmity or rancor against the appellant to plant bulk of arms ammunition along with a huge quantity of narcotics substance against him. The defense has not produced any evidence to establish animosity qua the prosecution witnesses. Moreover, the appellant has examined DW Gul Billand, who is the uncle of appellant Sartaj Khan has deposed that on 05-10-2013 he was in Karachi and received a telephonic call from appellant Sartaj Khan that he is standing at the Matni bypass and is leaving for Karachi. After some time, appellant Sartaj Khan again called him and informed that he has taken lift from a Truck Trailer in which two persons namely Asif and Shaheen Baz were available, he was in contact with appellant Sartaj and after some time, he again called on mobile phone to the appellant, but his cell phone was off, then he came to know from village that appellant Sartaj Khan has been arrested, but no such proof or CDR has been produced by the defence witness Gul Billand to believe that the appellant was in contact with him, hence defence taken by the appellant, having no force. In the instant case, the bulk of arms ammunition along with huge quantity of narcotics was recovered from the appellant, 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…”

16. Here, both the witnesses have deposed in the 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 the prosecution case.

17. On our evaluation of the evidence of complainant/Excise Inspector Abdul Rasool and mashir/EJ Zarar Ahmed, we find it confidence inspiring and trustworthy; appellant Sartaj Khan being driver was transporting the huge quantity of Charas in TruckTrailer bearing registration No.P-7114, was arrested at Sindh Punjab Border near Kamoon Shaheed. The version of complainant/Excise Inspector Abdul Rasool has been fully corroborated by mashir of arrest and recovery, which is substantiated with a 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 appellant falsely in this case.

18. Considering the above facts and circumstances, we are of the view that prosecution has succeeded to bring the guilt of accused/appellant at home and has proved its case against the appellant beyond any shadow of a doubt. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the trial Court while passing the impugned judgment, which in our humble view, is based on an appreciation of evidence and same does not call for any interference. Accordingly, the instant criminal appeal is dismissed being devoid of merits.

19. These are the detailed reasons of the shot order announced by us vide order dated 06.08.2018, whereby the appeal was dismissed.

JUDGE

JUDGE-