IN THE HIGH COURT
OF SINDH, BENCH AT SUKKUR
Crl.
Appeal No.D- 195 of 2016
Before;
Mr.
Justice Muhammad Iqbal Mahar
Mr.
Justice Irshad Ali Shah
Appellants: Noor
Taj S/o Khastazar Pathan, through
Mr. Abdul Baqi Jan Kakar, Advocate
Respondent: The
State, through Mr. Aftab Ahmed Shar Additional
Prosecutor General
Date of hearing: 17.04.2019
Date of decision: 17.04.2019
JUDGMENT
IRSHAD ALI SHAH, J; By way of instant Criminal Appeal, the
appellant has impugned judgment dated 01.10.2016, passed by learned Sessions
Judge/Special Judge (CNSA) Ghotki, whereby he (appellant) has been convicted
and sentenced to undergo Rigorous Imprisonment for life and to pay fine of Rs.100,000/-
(One lac) and in case of his default in payment of fine, he shall undergo S.I
for 01 year on finding him to be guilty for
an offence punishable u/s 9(c) CNC Act, 1997.
2. The facts in brief necessary
for disposal of instant Criminal Appeal are that the appellant and co-accused Shahidullah
were found in possession / transporting 140 kilograms of charas through truck
bearing Registration No.TTC-343 in shape of 140 packets, kept in secret cavity,
by police party of police station Excise Ubauro which was led by Inspector Hassan
Ali Dashti, for that they were booked and challaned accordingly.
3. At trial, the appellant and
co-accused Shahidullah did not plead guilty to the charge and prosecution to
prove it, examined the following witnesses;
(a) PW-1 complainant
Excise Inspector Hassan Ali Dashti at (Ex.12), he produced FIR, mashirnama of
arrest and recovery, Report of Chemical Examiner, letter for verification of
Registration papers, copy of verification report, copies of entries.
(b) PW-2
mashir Hussain Bux at (Ex.13).
Then the prosecution
sided its closed.
4. The statements u/s 342
Cr.P.C of the appellant and co‑accused Shahiddullah were recorded wherein
they denied the prosecution allegation by pleading their innocence by stating
that they were offloaded from a Coach and then were involved in this case
falsely by the Excise Police, they examined themselves on oath but did not
examine anyone in their defence.
5. It
was, inter-alia, stated by the appellant and co-accused Shahidullah in their
statements on oath that they were offloaded from the Coach and then were
involved in this case falsely by the police by making foistation of charas upon
them.
6. On conclusion of the trial, the
learned trial Court acquitted co-accused Shahidullah while convicted and
sentenced the appellant, as is detailed above.
7. Firstly, it was contended
by learned counsel for the appellant that the appellant was innocent and has
been involved in this case falsely by the police; secondly, it was
contended by him that the prosecution has not been able to prove its case
against the appellant beyond shadow of doubt and co-accused Shahidullah has
already been acquitted by learned trial Court, and thirdly, it was contended
by him that the appellant being young and first offender needs to be released
by modifying his conviction and sentence to one which he has already undergone
by him by taking a lenient view against him. If the latter contention of
learned counsel for the appellant is accepted then it amounts to admission of
the incident on his part on behalf of the appellant. However, learned counsel
for the appellant in support of his contentions, relied upon the cases of Ameer Zeb vs. The State (PLD 2012 Supreme
Court 380) and Behram Khan vs. The State (2013 Y L R 1147).
8. Learned
Additional PG for the State by making rebuttal to above contention sought for
dismissal of the instant appeal by contending that the judgment is well
reasoned and the case of the appellant is different to that of acquitted
accused Shahidullah.
9. We have considered the above
arguments and perused the record.
10. There is
no denial to the fact that gravity of the offence (s) of such like nature has
got impact on the public/society at large as well upon youth. It is
settled proposition of law that in the case of transportation or possession of Narcotics
substances; if the case, otherwise, stands proved then technicalities of
procedural nature or otherwise are to be overlooked.
11. 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.”
12. At this
moment, while appreciating the peculiar facts of instant case, it is stated
in case like the present one, the prosecution has only to show by evidence that
the accused had dealt with the narcotics 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.
13. 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)”
14. On
merits of the case, it is, inter-alia, stated by complainant Inspector Hassan
Ali Dashti and PW/mashir EC Hussain Bux that on 17.06.2014 they with rest of
the Excise police personnel when were performing their duty at Excise Check
Post Sindh Punjab Border, there at about 09:00 PM they found coming a truck. It was stopped its
driver disclosed his name to be Noor Taj while other person sitting by the side
of driver disclosed his name to be Shahidullah. On search beside bags of
potatoes from the truck were secured 140 packets of charas, each one was
weighed to be one kilogram, from each one was taken out 100 grams of charas for
Chemical Analysis, charas so secured and separated then were sealed a
mashirnama of arrest and recovery was prepared and then both the accused with
the recovery so made from them were taken to Police Station Excise Ubauro, and
they were booked and then challaned accordingly. Both of them (complainant and
his witness) have stood by their version, successfully on all material points,
despite lengthy cross examination, their version could not be disbelieved only
for the reason that they are police personnel, which even otherwise is
supported strongly in shape of recovery of truck and huge quantity of charas and
truck with remote chance of its foistation.
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 the police officials cannot be
disbelieved, if same otherwise qualifies test of being ‘confidence inspiring
and natural’ because it is not the status of a person but his evidence
which has to prevail in all circumstances.
17. The complainant was having no
reason to have involved the appellant in this case falsely, such plea even
otherwise the appellant has not been able to prove through cogent evidence. In
absence of such proof, mere plea of innocence is not of any substance
particularly when the prosecution, otherwise, has successfully proved its case against the appellant beyond
doubt.
18. If for
the sake of arguments, it is believed that the appellant was offloaded from a
passenger Coach, then the appellant was under legal obligation to have examined
the driver, cleaner or passenger of such Coach to prove such fact, which he has
failed to examine, for no obvious reason. Mere production of ticket which did
not contain his name is not enough to absolve him of the liability. Needless to
observe that, the simple plea of innocence is not sufficient to root out
presumption, legally to be taken within meaning to Section 29 of the Control of Narcotics Substances Act, 1997.
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 Shahidullah has been acquitted by learned trial Court but
there could be no denial to the fact that he obviously was having different case and for
his acquittal the learned trial Court has recorded valid reason which reads as
under;
“So far the case of Shahiddullah is concerned.
Prosecution has failed to bring on record any document show that he was cleaner
of the truck and from which time he was on said truck. In these circumstances,
mere presence of accused Shahidullah in the truck is no offence in eye of law.”
23. The case law which is relied
upon by learned counsel for the appellant is on distinguishable facts and
circumstances. In the case of Ameer Zeb (supra) only small and
unspecified quantity was taken from every packet as sample. In the instant
case, 100 grams of charas is taken as sample from each and every packet. It is
specified quantity. In case of Behram Khan (supra), the conviction
awarded to the appellant was modified mainly for the reason that he was having
18 KGs of charas. In the instant case, 140 KGs of the charas was recovered from
the appellant which is not calling for any justification to modify his
conviction to one which is already undergone by him. The punishment which is
prescribed for offence u/s 9(c) Control of Narcotics Substances Act, 1997, is
death or imprisonment for life and fine. The conviction which is awarded to the
appellant, if is modified would be clear deviation from the prescribed
punishment for the offence which he has committed.
24. In case of Muhammad Juman vs. The State and others
(2018 SCMR 318), it has been held by Honourable Apex Court that;
“----Ss.
302(b) & 302(c)--- Qatl-i-amd--- Sentence, modification of---Scope---Trial
Court convicted the accused persons under S. 302(b), P.P.C., which section
provided either of the two legal sentences, i.e. "death" or
"imprisonment for life"---In view of certain mitigating circumstance
the accused persons were awarded imprisonment for life, which was the lesser of
the two legal sentences---High Court while maintaining the conviction under S.
302(b), P.P.C. modified the sentence to "already under
gone"---Legality---Such modification in sentence by the High Court was
without application of mind as the two legal sentences under S. 302(b), P.P.C.
were "death" or "imprisonment for life" and nothing in
between---In case the High Court looking at the attending and mitigating
circumstances was convinced that the sentence awarded was severe or that the
case was covered by any of the legal exception or that case of the accused persons
fell under S. 302(c), P.P.C., and also beyond the pale of proviso thereto, the
Court could have exercised the discretion to award any term of sentence or
punishment "with imprisonment of either description for a term which may
extend to twenty five years"---High Court without application of mind and
recording any reasons to alter the sentence, in a mechanical manner, reduced
the sentence as already undergone, which was not a legal sentence within the
contemplation of S. 302(b), P.P.C.---Supreme Court set aside the impugned order
of the High Court and directed that the jail appeal filed by the accused
persons shall be deemed to be pending before the High Court---Appeal was
allowed accordingly.”
25. In view of the facts and
reasons discussed above, the instant appeal fails and it is dismissed
accordingly.
Judge
Judge
ARBROHI