IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Criminal Appeal No.D-118 of 2013.
Present:
Mr. Justice Muhammad Iqbal Mahar
Mr. Justice Amjad Ali Sahito
Appellant : Nabi Gul son of Haji Shafi Gul bycaste Pathan, (Presently confined at Central Jail Khairpur).
Through M/s Nisar Ahmed Bhanbhro Advocate
State : Mr. Zulfiquar Ali Jatoi, Additional P.G.
Cr. Jail Appeal No.D-123 of 2013.
Appellant : Hassan Khan son of Peshan Khan bycaste Pathan (Presently confined at Central Jail Khairpur).
Through Mr.Najamuddin Dharejo Advocate.
State : Through Mr. Zulfiquar Ali Jatoi, Additional P.G.
Date of hearing : 12-12-2018
Date of decision : 12-12-2018.
J U D G M E N T
Amjad Ali Sahito, J.– Appellants named above were tried by learned Sessions Judge/Special Judge for CNS Khairpur, in Special Case No. 11/2011 Re. State Vs Hassan Khan & another, for offence punishable under section 9 (c) of Control of Narcotics Substance Act, 1997, arising out of Crime No.01/2011 registered with Excise Police Station Gambat, and 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.300,000/-(Three Lac) each and in case of default in payment of fine, to suffer S.I for one (01) year and six (06) months more. However, benefit of section 382-B Cr.PC was also extended to them.
2. Succinctly, the prosecution case as depicted in the FIR is that on 27-01-2011 complainant Excise Inspector Mushtaq Ali Shaikh lodged the F.I.R. alleging therein that on the day of repot he along with his subordinate staff namely ECs Muhammad Aslam Wassan, Hazoor Bux Khilji, Bashir Ahmed Khilji, Amir Ahmed Soomro, Noorullah Kalhoro, kahmir Mangnejo, Inayatullah Gilal, Ghulan Nabi Mangnejo, Mir Muhammad Kandhro, Muhammad Saleh Khaskheli left Excise Police Station Gambat vide entry No. 01 and at 09-00 pm they reached at Excise Police Check Post Rasoolabad, where they started to conduct the checking of the vehicles. On 28-01-2011 at about 4-00 am (early in the morning), they stopped a Dumper Truck bearing registration No. JU/8964, which was coming from Sukkur side and they found that two persons were seated in it. On inquiry the person sitting on driving seat disclosed his name as Hassan Khan son of Pashemgul by caste Engar r/o Muhalla Rahimabad Peshawar and other person showing himself as second driver disclosed his name as Nabi Gul son of Haji Shafi Gul Mahind Enko R/o Charsada road Bakhsho Pul Khatar Peshawar. During the personal search of driver Hassan Khan, a registration book with the name of Abdul Wahab son of Abdul Samad and cash Rs. 4000/- were recovered from his possession, while cash Rs. 1000/- was also secured from the shirt pocket of Nabi Gul. During the search of Dumper Truck, plastic roles were taken out from the frame of spare tire, which contained Heroin powder. The recovered roles were counted, which became 100 roles and each role was weighed which became 750 grams, total weight of heroin powder roles became 75 kilograms. The complainant separated 100 grams Heroin powder from each role for chemical analysis and sealed separately in white paper, while the remaining Heroin powder was also sealed in four plastic bags. Such mashirnama of arrest and recovery was prepared at the spot in presence of mashirs EC Muhammad Aslam Wassan and EC Hazoor Bux. Thereafter the accused along with recovered case property were brought 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/s173 Cr.PC before the competent Court of law.
3. The learned trial Court on 10-03-2012 framed a charge against the appellants at Exh.04, 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 Mushtaq Ali Shaikh at Exh.07, he produced memo of arrest and recovery, F.I.R., Departure and arrival entries, Chemical examiner's report, arrival and departure entries, road certificate at Ehx. 07/A to 07/F respectively.
(ii). PW-02 Mashir/E.C Muhammad Aslam Wassan at Exh.08.
Both witnesses were cross examined by the learned counsel for the appellants. Thereafter, the learned DPP for the State closed the prosecution side.
5. Statements of the appellants were recorded u/s 342 Cr.P.C at Exh.09 and 10 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 vide judgment dated 26-11-2013, which is impugned before this Court by way of filing instant Criminal Appeals.
7. learned counsel for the appellants mainly contended that the appellants are innocent have falsely been implicated in this case and nothing has been recovered from their possession; that the appellants are innocent and had no knowledge about the availability of heroin powder in the frame of spare tire of 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. They lastly contended that the prosecution has failed to prove its case against the appellants; thus according to them under the above mentioned facts and circumstances, the appellants are entitled for their acquittal. The learned counsel for the appellants have relied upon the cases reported in 2018 P.Cr.L.J 1200, 2016 YLR 2293 and 2017 YLR 113.
8. 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 appellants beyond any shadow of doubt; that the appellants were found transporting huge quantity of narcotic substance which was secured from the frame of spare tire of dumper Truck driven by them; that the excise officials had no enmity to foist such a huge quantity of heroin 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 Additional 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 75 kilograms heroin powder was recovered from the secrete cavity of Dumper Truck, which was driven by appellants Hassan Khan and co-driver Nabi Gul, who are said to be residents of Peshawar, but they were arrested at Excise Check Post Rasoolabad situated at National Highway Road, prior to their arrival at destination, hence both the appellants are found equally responsible for transportation of huge quantity of heroin powder having its prior knowledge in their vehicle. It is nowhere mentioned or suggested by learned counsel of the appellants that the said Dumper Truck was either hired by someone else or they had no knowledge about the availability of heroin powder in it. In such situation, it cannot be believed that such huge quantity of heroin powder was kept in the frame of spare tire of the vehicle without prior knowledge of its driver, which undeniably remained in possession and control of both the appellants all the way from Peshawar to the place of recovery, rather they being its drivers were fully responsible for transporting of such huge Heroin powder in their Dumper Truck. It is quite incredible that the appellant Hassan Khan left his province with a Dumper Truck driving himself lonely for another province without support of any other driver, hence the version of prosecution cannot be dis-believed regarding presence of appellant Nabi Gul in Duper Truck as second driver. 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, 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 and 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 Heroin viz.75 kilograms against the appellants at their own sources. It is settled principle of law that the prosecution witnesses belong to police officials by it self 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 Vs. 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 heroin 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 frame of spare tire of Dumper Truck in possession and control of appellants Hassan Khan and Nabi Gul 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 than 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 heroin powder was recovered from the frame of spare tire of Dumper Truck 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.In their tern only they pleaded that they are innocent and property have been foisted up on them. But they failed to produce any cogent evidence to believe that the recovered property have been foisted upon them.
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. On our evaluation of the evidence of complainant/Excise Inspector Mushtaq Ahmed Shaikh and mashir/EC Muhammad Aslam Wassan, we find it confidence inspiring and trustworthy, the appellants being drivers were transporting the huge quantity of heroin powder in Dumper Truck bearing registration No. JU/8964, were arrested at Excise Police Post Rasoolabad situated National Highway Road. The version of the complainant/Excise Inspector Mushtaq Ahmed Shaikh 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.
21. Considering the above facts and circumstances, we are of the view that prosecution has succeeded to bring the guilt of accused/appellants Hassan Khan and Nabi Gul at home and has proved its case against them beyond any shadow of a doubt. Learned counsel for the appellants have 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 Crl. Appeals stand dismissed being devoid of merits.
22. These are the detailed reasons for our short order announced by us on 12-12-2018, whereby the instant Crl. Appeals were dismissed.
J U D G E
J U D G E -
Nasim/P.A