IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Jail Appeal No.D-88 of 2013

Present:

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Irshad Ali Shah,

Appellant : Allah Dino s/o Muhammad Saifal Soomro,

Through Mr .Altaf Hussain Surhio, Advocate

State : Through Mr.Khadim Hussain Kooharo, A.P.G.

Date of hearing : 01.10.2018

Date of decision : 09.10.2018

JUDGMENT

IRSHAD ALI SHAH, J.-, The appellant by way of instant appeal has impugned the judgment dated 29.10.2013, passed by learned Session Judge/Special Judge (CNS) Jacobabad, whereby he convicted and sentenced the appellant to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default thereof to undergo S.I for one year, for an offence punishable u/s.9 (c) of CNS Act, 1997, in Special Case No.35/2012, outcome of FIR Crime No.06/2012 of Excise P.S, Jacobabad.

2. It is alleged that the appellant was found carrying with in his bag 18 K.Gs of Charas and 02 K.Gs of Heroine Powder, by the police party of Excise P.S, Jacobabad, led by complainant/Inspector Gul Muhammad Bhutto, for that he was booked and challaned in the present case.

3. At trial, the appellant did not plead guilty to the charge, and the prosecution to prove it examined two witnesses i.e PW-01 Complainant/Inspector Gul Muhammad, who produced memo of arrest and recovery of contraband substance, FIR of the present case, roznamcha entries relating to departure and arrival at said police station and report of chemical examiner and PW-02 Mashir/E.J Muhammad Hashim.

4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that the Charas and Heroine Powder actually were secured by police from two females sitting in the same Wagon, they were released by the police after acceptance of illegal gratification and then he was involved by the police in this case falsely by making foistation of above said property upon him.

5. In order to prove his plea of innocence, the appellant examined himself on oath and DW Naseer Ahmed, who happened to be caste-fellow and neighbourer of the appellant.

6. It was stated by the appellant in his deposition that he was going from Jacobabad to Shikarpur through Wagon and when he reached Mehar Shah, the Excise police party got down the passengers including him, they apprehended him but driver Naseer Soomro told the Excise police for him to be innocent and he was assured by the Excise police that he would be released, then Excise police took him to Excise P.S, Jacobabad where Excise police demanded from him illegal gratification, which he could not pay and then the Excise police detained him illegally for 5/6 days at different places and thereafter he was challaned in the present case.

7. It was stated by DW Naseer Muhammad in his deposition that he was going from Jacobabad to Shikarpur through Wagon and the appellant was sitting on front seat alongwith a passenger, 13/14 more passengers including three females and a child were sitting on the back seat, when they reached Mehar Shah, the Excise police stopped the Wagon, they detained the appellant and three female passengers and then he proceeded further to Shikarpur with remaining passengers, a bag was lying under the back seat of Wagon but he did not see anything in the said bag.

8. On evaluation of evidence so produced by the prosecution, the learned trial Court convicted and sentenced the appellant as detailed above by way of judgment, which the appellant has impugned before this Court by way of instant appeal.

9. It has been contended by the learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the Excise police; that there is no independent witness to the incident; that the appellant has nothing to do with the contraband substance which was secured by the Excise police from the female passengers; that there is dishonest improvement in evidence of the prosecution, which is not transpiring confidence. By contending so, he sought for acquittal of the appellant as according to him he has been substituted with the real culprits. In support of his contention, he relied upon cases of Nazeer and others Vs. the State (2014 P.Cr.LJ-1358), 2). Abdul Hameed Vs. the State (2014 YLR-2050), 3). Minhaj Vs. the State (2004 PCr.LJ-1992), 4). Muhammad Khalid Vs. the State (1998 PCr.LJ-808), 5). Aqal Khan and another Vs. the State (PLD 2004 Pesh-59), 6).Muhammad Mansha Vs. the State (1995 SCMR-1414), 7). Tariq Parvez Vs. the State (1995 SCMR-1345), 8). Johar Ali and another Vs. the State (2003 PCr.LJ-680) and 9). Ikramullah and others Vs. the State (2015 SCMR-1002).

10. Learned A.P.G has sought for dismissal of the instant appeal by supporting the impugned judgment by contending that the substitution of the appellant with real culprit is rare phenomenon.

11. We have considered the above arguments and perused the record.

12. It was stated by complainant/Inspector Gul Muhammad and PW/Mashir E.J Muhammad Hashim during course of their evidence that on 07.12.2012, when with other Excise officials, they were conducting checking at Excise Check Post Mehar Shah Bukhari, they found a Wagon bearing registration No.R-0180 coming from Jacobabad side. They found the appellant sitting on its last seat, holding a bag of brown colour in his lap; on suspicion, he was got down with bag and from his personal search they secured one currency note of Rs.500/- while from his bag, they secured two pairs of clothes and two cloth bags duly sealed and 36 slabs of Charas of brown colour. The cloth bags were cut open with knife and each of them was found containing 01 Kilogram Heroine powder of white colour. Out of them, they separated 20 grams of Heroine powder and sealed for chemical examination, the remaining Heroine powder was sealed separately. Each slab of Charas was weighed to be 500 grams, total 18 K.Gs, and from each slab 10 grams of Charas were separated and sealed for chemical examination, while the remaining Charas was sealed separately. A memo of arrest and recovery then was prepared at the spot and the accused alongwith recovered articles, was brought a Excise P.S, Jacobabad, there he was booked in the present case formally and after usual investigation he was challaned.

13. The complainant and his witness have stood by their version on all material points despite lengthy cross examination, their evidence could not be disbelieved on the basis of irrelevant and immaterial contradictions. The contraband substance according to the appellant was not secured from him but the female passengers, who were found travelling with him in the same Wagon. By taking such plea, the appellant in fact has admitted the availability of narcotics substance in a passenger Wagon whereby he was found travelling at the time of incident. The police indeed was having no motive to have involved the appellant in this case falsely by substituting him with real culprits.

14. The defense plea which was put forth by the appellant before learned trial Court was simple denial to the case of prosecution being innocent, the same was rightly rejected by learned trial Court by making an observation that it is after thought. In these circumstances, it would be unjustified to upset the finding of conviction.

15. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In none of the case law so relied upon by learned counsel for the appellant, the accused took plea of the substitution.

16. In case of Tariq Mehmood and others Vs. The State (2018 YLR-1668), it has been held by Hon’ble High Court that;

“Record showed that accused persons had admitted the presence of the narcotics in the vehicle and recovery of the same while they were present in the vehicle---Presumption would be that accused persons were in possession of illicit articles under S.29 of the Control of Narcotics Substances Act, 1997, unless the contrary was proved---Accused persons could not discharge burden of proof to the contrary---Prosecution, in circumstances, had proved the charge against the accused persons”.

17. In view of the facts and reasons discussed above, it could be concluded safely that no illegality or irregularity is committed by learned trial Court while recording conviction and sentence against the appellant by way of impugned judgment, which may justify calling for interference with it by way of instant appeal, it is dismissed accordingly.

JUDGE