IN THE HIGH COURT
OF SINDH, BENCH AT SUKKUR
Crl. Jail Appeal No.D-
78 of 2016
Before;
Mr.
Justice Muhammad Iqbal Mahar
Mr.
Justice Irshad Ali Shah
Appellants: Islam
Gul S/o Jawas Khan Pathan, through Mr. Rukhsar Ahmed
M.Junejo, Advocate
Respondent: The
State, through Mr. Abdul Rehman Kolachi
Deputy
Prosecutor General
Date of hearing: 02.04.2019
Date of decision: 02.04.2019
JUDGMENT
IRSHAD ALI SHAH, J; The
appellant by way of instant Criminal Jail Appeal has impugned judgment dated 13.04.2016,
passed by learned Sessions Judge/Special Judge (CNSA) Ghotki,
whereby he has been convicted and sentenced to undergo imprisonment for life
and to pay fine of Rs.3,00,000 /- or in default
to make payment of fine, he shall undergo S.I for 01 year and 06 months for
having committed an offence punishable u/s 9(c) CNC Act, 1997, with benefit of
section 382-B Cr.PC.
2. The facts in brief necessary
for disposal of instant Criminal Jail Appeal are that the appellant and
co-accused Zeenat Shah were found in possession
/transporting through Truck bearing Registration No.C-3068 30 kilograms of
heroin powder in shape of 30 packets by police party of police station Excise Ghotki which was led by Inspector Muhammad Younis Dhaoundho, for that they
were booked and reported upon by the police.
3. At trial, the appellant and
co-accused Zeenat Shah did not plead guilty to the
charge and prosecution to prove it, examined PW-1 complainant Inspector Muhammad
Younis at (Exh.10), he produced mashirnama
of arrest and recovery at (Ex.10/A), FIR at
(Exh.10/B), roznamcha entries at (Ex.10/C and 10/D)
respectively, letter for verification of truck at (Ex.10/E), letter for
Chemical examination at (Exh.10/F), receipt of Chemical Examiner at (Exh.10/G),
verification letter of the truck along with Form-E at (Ex.10/H), Chemical
Examiner’s report at (Exh.10/I) and roznamcha entries
at (Exh.10/J & K); PW-2 Muhammad Dawood at
(Exh.11) and then closed the side.
4. The appellant and co-accused
Zeenat Shah in their statements recorded u/s 342 Cr.P. C denied the prosecution allegation by pleading their
innocence by stating that they were travelling from Punjab to Karachi in Coach,
they were offloaded by the Excise Police and the heroin powder along with truck
have been foisted upon them, they did not examine themselves on oath nor anyone
in their defence.
5. On
evaluation of the evidence so produced by the prosecution, the learned trial
Court acquitted co-accused Zeenat Shah while convicted
and sentenced the appellant, as is detailed above.
6. It is contended by learned
counsel of the appellant that the appellant being innocent has been involved in
this case falsely by the police, the truck and contraband substance have been
foisted upon the appellant by the police, there is no independent witness to
the incident, the property though was sent to Chemical Examiner on 16.09.2013 was
delivered in his office on 15.09.2013, and co-accused Zeenat
Shah has already been acquitted. By contending so, he sought for acquittal of
the appellant.
7. It
is contended by learned DPG for the State that the property was delivered to
the Chemical Examiner on 16.09.2013, the police officials were having no enmity
with the appellant to have involved him in this case falsely by making foistation of truck and huge quantity of heroin powder upon
him and co-accused Zeenat Shah was having a
distinguishable and different case. By contending so, he sought for dismissal
of the instant appeal.
8. We have considered the above
arguments and perused the record.
9. At the
very outset, it may well be said that the gravity of the offence (s) of such
like nature has got impact on the public at large as well upon young-blood. It
is settled proposition of law that in the case of transportation or possession
of narcotics; if the case, otherwise, stands proved then technicalities
of procedural nature or otherwise should be overlooked.
10. In case of Ismaeel
Vs. The State (2010 SCMR-27), it has been observed by Honourable Apex Court that;
“…. It is now settled proposition of
law by flex of time that 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 Court should consider
the entire material as a whole and if it is convinced that the case is proved
then conviction should be recorded notwithstanding procedural defects as
observed by this Court in Munawar Hussain’s
case 1993 SCMR-785.”
11. At this
juncture, while appreciating the peculiar facts of instant case, it is
said that in such like cases, the prosecution has only to show by evidence that
the accused had dealt with the narcotic substance or has physical custody of it
or is directly concerned with it, then presumption would be that accused has
committed the offence unless the accused proves otherwise.
12. In case
of Muhammad Noor and others Vs. The State
(2010 SCMR-927), it has been observed by the Honourable
Apex court 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 practical 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”
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 has 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 cases of
Inder Sain v. State of Punajb (AIR 1973 SC-2309)”
13. Having
referred to above legal position, the perusal of the record shows that it was,
inter-alia, stated by complainant Inspector Muhammad Younis
Dhoundho and PW mashir ED-
Muhammad Dawood that on 13.09.2013 they with rest of
the excise police personnel when were performing their duty at Excise Check-post
Kamoon Shaheed there at
about 08:00 p.m there was found coming a truck
bearing Registration No.C-3068, from Punjab side in high speed. It was made to
stop. Therein were found sitting two persons. They were got down and were asked
to disclose their identity. On that the driver disclosed his name to be Islam Gul (appellant) while other person disclosed his name to be
Zeenat Shah (acquitted accused). On search from the
appellant were secured Rs.4500/-, his identity card and driving license and on
search from co‑accused Zeenat
Shah were secured Rs.1500/- and his identity card. On enquiry, they disclosed
that the truck is empty. On search a secret cavity was found on the backside of
the drivers’ seat of the truck. It was opened and therein were
found 30 packets containing brown colour Heroin
powder. Each packet was weighed to be one kilogram. Out of each packet, 100
grams of Heroin powder was separated and sealed for Chemical examination while
remaining packets were sealed separately. On further search, were secured one
Registration book of the vehicle and route permit in name of Abdul Wahid. A mashirnama of arrest and recovery then was prepared at the
spot and the said accused with the recovery so made from them were taken to P.S
Excise Ghotki. There they were booked and reported
upon accordingly. It was further stated by the complainant that on
investigation, he recorded 161 Cr.P.C statements of
the P.Ws, wrote a letter for verification of the registration papers of the truck,
dispatched the samples of Heroin powder to the Chemical Examiner and after
usual investigation submitted the challan of the
case. There appears no reason to disbelieve the evidence of the complainant and
his witness which is supported strongly in shape of recovery of truck and huge
quantity of Heroin powder, which was kept concealed therein in a secret cavity.
It was denied by the complainant and his witness that the secret cavity is
situated on floor of the truck. Such suggestion prima facie indicates that the
dispute with the appellant is only to the extent of location of the secret
cavity in the Truck and not otherwise.
14. Needless to say that evidence
of official witnesses could not be disbelieved merely for the reason
that they are police officials because normally private persons do avoid
to become witness against such like persons.
15. In case of Zafar Vs. The State (2008 SCMR-1254), it has been held by the Honourable Apex Court that;
“---S. 9(c)---Evidence of police officials---Competence---Police
employees are competent witnesses like any other independent witness and their
testimony cannot be discarded merely on the ground that they are police
employees”.
16. Even otherwise, in absence any malice
or ill motive the evidence of one cannot be disbelieved, if same
otherwise qualifies test of being ‘confidence inspiring & natural’
because it is not the status of a person but his evidence which has
to prevail in all circumstances.
17. The complainant or his witness were having no reason to have involved the appellant
in this case falsely instead of real culprit, such plea even otherwise the
appellant has not been able to prove through cogent evidence. In absence of
such proof, mere plea is not of any substance particularly when the
prosecution, otherwise, has successfully
proved its case against him beyond doubt.
18. It is
also a matter of record that the appellant, being driver of the truck was found
transporting 30 KGs of heroin powder by keeping the same in its secret cavity.
In order to disprove such allegation, the appellant was under obligation to
have examined him on oath or any of his witness which he has failed to examine,
simple plea of innocence is not sufficient to root out presumption, legally to
be taken within meaning of Section 29 of the Act.
19. In the case of Ismaeel (supra) it has also been held by Honourable Apex Court at Rel P-31
that;
“In view of the law laid down by this Court in
the aforesaid judgments we are of the opinion that the driver cannot be
absolved from the responsibility if the contraband items are being transported
in the doors of the vehicles being driven by him”.
20. In
case of Kashif Amir Vs. The State (PLD 2010
SC-1052), it has been held by the Honourable
Court that;
“---S. 9(c)---Transportation of
narcotics---Driver of the vehicle to be responsible---Person 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
S.9(6) of the Control of Narcotics Substances Act, 1997, that the possession
should be an exclusive one and can be joint one with two or more persons---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”.
21. In
case of Fida Jan Vs. The State (2001
SCMR-36), It has been held by the Honourable
Court;
“Provisions of S.20 Control of Narcotics
Substance Act, 1997, were directory in nature,
therefore, its non compliance could not be considered a strong ground for
holding that the trial of the accused was bad in the eye of law”.
22 No
doubt, co-accused Zeenat Shah has been acquitted by
learned trial Court but he obviously was having different case for his
acquittal and trial Court has recorded valid reasons by observing that;
“So far the case of accused Zeenat Shah s/o Abad Gul is
concerned, there is nothing on record to show that he was in
knowledge of presence of contraband substance in the truck nor any document is
produced to show that he was cleaner of the truck as such his mere presence in
the truck is no offence.”
23. As per report of Chemical
Examiner, the property was delivered to him on 15.09.2013. It appears to be a
typographical mistake, otherwise as per receipt at (Exh.10/G) which has been
acknowledged by the Chemical Examiner, the property was delivered to him on
16.09.2013. For such typographical mistake, no benefit could be extended to the
appellant.
24. For
what has been discussed above, it could be concluded safely that the
prosecution has been able to prove its case against the appellant beyond shadow
of doubt and he has rightly been convicted and sentenced by learned trial Court
by way of impugned judgment, which is not calling for interference by this
Court by way of instant appeal, it is dismissed accordingly.
Judge
Judge
ARBROHI