IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.D- 32 of 2018

Present:

Mr. Justice Muhammad Iqbal Mahar.

Mr. Justice Amjad Ali Sahito

Appellant : Ghazni s/o Khuda Dad Achakzai Through Mr.

Abdul Kabeer Khan Bareech, Advocate.

The State : Through Mr. Abdul Rehman Kolachi, Deputy

Prosecutor General.

Date of hearing : 28.08.2018.

Date of Judgment: 28.08.2018.

J U D G M E N T

Amjad Ali Sahito, J.–Appellant Ghazni Achakzai was tried by learned Sessions Judge/Special Judge for CNSA, Naushehro Feroze in Special Case No. 44 of 2016 arising out of crime No. 24 of 2016 registered with P.S, DIO, Camp Kandiaro for offence under section 9(c) of Control of Narcotic Substances Act, 1997, and vide judgment dated 14.02.2018, he was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.200,000/- and in case of default in payment of fine, to suffer S.I for10-months more. However, the benefit of section 382-B Cr.PC was also extended to him.

2. The case of the prosecution as depicted in the FIR is that on 16.11.2016, complainant Excise Inspector Imtiaz Ali Makhdoom along with his subordinate staff was available at DIO Camp Kandiaro, where he received spy information that one Hino Truck bearing registration No. TKU-775 is coming from Jaccobabad and is going to Karachi and Charas was lying in the same truck. On receipt of such information, complainant party left DIO camp Kandiaro vide station diary No.2 at 10.30 a.m by a police van. They reached Bus Stand Chandia village NHW road where they conducted checking of vehicles and were waiting for Truck. During checking of vehicles it was 12.00 noon when they saw one Truck coming from Sukkur side and they gave the signal to stop. The driver of Truck stopped Truck and they saw driver present in the Truck who attempted to run but he was apprehended. On enquiry he disclosed his name as Ghazni (appellant). Due to non-availability of Mashirs from the public, EC Abdul Sattar and EC Ghulam Abbas were appointed as Mashirs and on a personal search of the driver, Rs. 5000/-, and one Photostat copy of CIC were recovered from his possession. On enquiry, driver disclosed that rice were loaded in the Truck. Registration book was secured from dashboard of Truck which was registered in the name of Khan Baz Khan Pathan. Complainant party noticed secret holes in the oil tank which was containing 1000 packets of Charas, which were weighed and came out as 100 Kilograms. Out of which, 200 grams from each packet was taken as a sample. Charas was sealed on spot. After completing codal formalities at the spot, accused and recovered Charas were brought at Excise Police Station, where above FIR was lodged. On completion of the usual formalities, the Excise police submitted a report under section 173 Cr.PC before the competent Court of law.

3. The learned trial Court framed a charge against the appellant, 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 prosecution witnesses:-

(i) PW-1 Complainant/Excise Inspector Aijaz Ali Makhdoom at Exh.4, he produced memo of arrest and recovery, a copy of FIR, P.S copy of station diaries, verification of truck, receipt of Khaliji Goods Transport and Chemical Report at Exh.4/A to 4/G respectively.

ii). PW-2Mashir EC-Abdul Sattar Soomro at Exh.5.

Both these witnesses were cross-examined by the learned counsel for the appellant. Thereafter, the learned Special Prosecutor for the State closed the prosecution side vide statement at Exh.6.

5. Statement of the appellant was recorded in terms of section 342 Cr.PC at Exh.7, in which he denied the prosecution allegations and further stated that he is innocent and lastly prayed for justice. However, neither appellant examined himself on oath in terms of Section 340(2) Cr.PC to disprove the prosecution allegations nor led any evidence in his defence.

6. The learned trial Court after hearing the parties counsel and on assessment of the evidence, convicted and sentenced the appellant, as stated above, vide judgment dated 14.02.2018, which is impugned before this Court by way of filing instant criminal appeal.

7. Learned Counsel for the appellant contended that the appellant being driver of the Truck is 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; that out of the alleged Charas recovered from secret cavity of the Truck, only 200 grams Charas was separated from each packet as a sample and did not send entire case property to the Chemical Examiner to believe that the recovery is narcotics 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 appellant; thus according to him under the above-mentioned facts and circumstances, the appellant is entitled to his acquittal.

8. On the other hand, learned Deputy 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 huge quantity of narcotic substance which was secured from the cavity of Truck driven by him; that the excise officials had no enmity to foist such a huge quantity of Charas upon the appellant at their own. He thus lastly prayed for dismissal of the instant appeal.

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

10. The careful analysis of the material brought on record reflects that 100 (hundred) K.Gs of Charas was recovered from the secret cavity of Truck bearing registration No.TKU-775 and from each packet, 200/200 grams of Charas was separated as a sample for chemical examination and wrapped in white papers and remaining 25/25 packets of Charas were put into four plastic gunny bags and sealed on the spot, which was driven by appellant Ghazni who is said to be resident of Quetta, but he was arrested at NHA road leading from Sukkur to Karachi Bus Stand Chandia Village Taluka Kandiaro, hence the appellant is found responsible for transportation of huge quantity of narcotic substance having prior knowledge of the narcotic in his vehicle. It cannot be believed that such huge quantity of Charas was kept in the secret cavity made in oil tank of the vehicle without prior knowledge of its driver, which undeniably remained in possession and control of the appellant all the way from Jaccobabad to the place of recovery, rather he being its driver was fully responsible for transporting of such huge narcotic substance in his Truck. The reliance in this context is placed upon the 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 in charge 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. In order to prove its case, the prosecution examined PW-1 Imtiaz Ali Makhdoom. He deposed that on 16.11.2016, he received spy information that one Truck No.TKU-775 is coming from Jaccobabad and going to Karachi, on such information complainant along with his subordinate staff reached bus stand Chandia village NHW road and started checking, when at about 12.00 noon, said Truck was stopped and during checking they found secret holes in the oil tank. It was opened and a huge quantity of Charas weighing 100 K.Gs was recovered. In cross-examination, he admitted that “It is correct that I am complainant as well as an investigation officer in this case”. He further admitted that at the time of recovery of Charas 300 bags of rice were found loaded in the Truck and the said rice was returned to the owner on Superdari. He has also admitted that he deposited the Charas in Malkhana of Excise Police after registration of an FIR. However, he denied the suggestion that the accused was arrested when he was sitting in the hotel and Charas was foisted upon him. The prosecution examined Mashir PW-2 Abdul Sattar at Exh.5. He has supported the prosecution story as well as contents of Mashirnama of arrest and recovery.

12. As regards the arguments of learned counsel for the appellant 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”.

13. It means that the 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 straightforward and confidence inspiring evidence, there is nothing on the record to show that they have deposed against the appellant maliciously or out of any animus and it cannot be believed that the excise officials would plant such a huge quantity of narcotic viz.100 K.Gs against the appellant at their own sources. It is a 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”.

14. In the case in hand, appellant has failed to bring on record any material to show any animosity or ill-will with the complainant and the prosecution witnesses, 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”.

15. 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).

16. 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(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.”

17. A perusal of chemical examiner’s report Exh. 4/G, reveals that on the basis of the test mentioned therein it has been declared that the said parcel contained Charas, as regards the arguments of learned counsel for the appellant that only 200/200 grams were separated from each packet is concerned, it would appropriate to refer section 36 of the Control of Narcotic Substance Act 1997, which reads as under.

“36. Reports of Government analysts:-The government analysts to whom a sample of any narcotics drugs, psychotropic substance or controlled substances has been submitted for test and analysts shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed.

(2) Notwithstanding anything contained in any other law for the time being in force any document purporting to be a report signed by a government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive.

From the perusal of section 36 of the CNS Act, which requires that the sample of the Narcotics drugs shall be tested by the Government analysts. Where the statute has itself use the word “sample” it is but obvious that sample is always part of the total and it does not require that the whole quantity should be tested.

18. It is pertinent to mention here that chemical examiner’s report regarding Charas is sufficient to prove that the substance recovered from the appellant 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 in possession and control of appellant being its driver, for which the appellant has failed to discharge his 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 has undergone any process towards the production or manufacture of narcotic drug”

18. 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 would be upon the accused to establish his innocence and absolve himself from the allegations regarding recovery of a narcotic substance, while the prosecution has only to show by evidence that the accused was in custody or directly concerned with recovered narcotic substance. In the instant case, the Charas recovered from the secret cavity made in oil tank of Truck stood established, hence it was the turn of the appellant to has proved contrary. In his turn, the appellant has taken the defence plea that he was arrested from the hotel when he was sitting with his sister’s son, but neither he examined his sister’s son as a defence witness nor examined any person from the hotel to believe his version, but in his statement recorded under section 342 Cr.PC, the appellant merely stated that he is innocent and prayed for justice, but no proof of his innocence or false implication, in this case, has been produced by him. Without such proof, the appellant will be held guilty by virtue of Section 29 of Control of Narcotic Substances Act, 1997.

19. 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 appellant as there is no bar in the law for a complainant to act as investigation officer of the case. 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”.

20. Though the investigation officer and other prosecution witnesses are Excise officials they have no enmity or rancor against the appellant to plant such a huge quantity of narcotics substance against him. 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…”

21. 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.

22. On our evaluation of the evidence of complainant/Excise Inspector Imtiaz Ali Makhdoom and Mashir EC-Abdul Sattar Soomro, we find it confidence inspiring and trustworthy; appellant Ghazni Achakzai being driver was transporting the huge quantity of Charas in Truck bearing registration No.TKU-775 was arrested at Bus Stand stop Chandia village on National Highway, Kandiaro. The version of complainant/Excise Inspector Imtiaz Ali 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.

23. 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 Crl. Appeal is dismissed being devoid of merits.

24. These are the detailed reasons for our short order announced by us on 28.08.2018, whereby the instant Crl. Appeal was dismissed.

JUDGE

JUDGE-