IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-64 of 2019

Before:

Mr. Justice Muhammad Junaid Ghaffar

Mr. Justice Irshad Ali Shah

Appellants : 1). Jan Muhammad s/o Sheren Khail Pathan

2). Hazratullah s/o Gulsadeen Pathan

Through Syed Samiullah Shah, Advocate

The State : Through Mr.Muhammad Noonari, D.P.G

Date of hearing : 08.09.2020

Date of decision : 15.09.2020

JUDGMENT

IRSHAD ALI SHAH, J.- The appellants by means of instant criminal appeal have impugned judgment dated 31.08.2019, rendered by learned 1^st Additional Sessions Judge/MCTC (C.N.S), Kandhkot, whereby they for an offence punishable under section 9 (c) of the CNS Act, 1997, have convicted and sentenced to undergo imprisonment for life with fine of Rs.100,000/- each and in default whereof to undergo simple imprisonment for one year with benefit of Section 382-B Cr.PC.

2. The facts in brief necessary for disposal of instant criminal appeal are that the appellants were found in possession/transporting 19 K.Gs of Charas kept in secrete cavity of their Truck, by police party of Excise P.S DIO Camp, Kashmore, for that they were booked and reported upon by the police.

3. At trial, the appellants did not plead guilty to the charge and the prosecution to prove it, examined PW-01 complainant Excise Inspector Talat Aziz Kalwar, he produced memo of arrest and recovery, CNIC of appellant Jan Muhammad, builty No.1196, FIR of the present case, copy of letter to Chemical Examiner at Rohri alongwith receipt, report of Chemical Examiner, his letter to Excise and Taxation Officer, Peshawar, with his report, PW-02 Mashir E.C Piyaro, PW-03 E.C Mumtaz Ali and then closed its side.

4. The appellants in their statements recorded u/s.342 Cr.P.C denied the prosecutions’ allegation by pleading innocence by inter-alia stating that they were the passengers and the Charas was recovered from Sangeen Khan and Ajab Khan, they have been released by the police after accepting bribe and by foisting Charas upon them. By stating so, they produced certain documents to prove that the complainant is having a criminal record. They did not examine any one in their defence or themselves on oath to disproof the charge against them.

5. On appraisal of the evidence, so produced by the prosecution, the learned trial Court convicted and sentenced the appellants, as is detailed above, by way of impugned judgment.

6. It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely; they were passengers in the Truck wherein the Charas was found lying; there is no driving license with any of the appellant and they have been substituted with real culprits of the incident, who have been released by the police after accepting the bribe; the complainant has conducted investigation of the case himself and the entire police papers were prepared by E.C Piyaro; the report of the Chemical Examiner is defective one; there is no independent witness to the incident and the evidence which the prosecution has produced at trial being inconsistent and unreliable has been believed by the learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellants. In support of his contentions, he relied upon cases of Abdul Rehman Vs. The State (2019 PCr.LJ Note-62), 2). Abdul Ghani and others Vs. The State and others (2019 SCMR-608), 3). Faizan Ali Vs. The State (2019 SCMR-1649), 4). Kamran Shah and others Vs. The State and others (2019 SCMR-1217), 5). Mst.Razia Sultana Vs. The State and another (2019 SCMR-1300), 6). Muhammad Nawaz Vs. The State and others (2019 MLD-1574), 7). Khair-ul-Bashar Vs. The State (2019 SCMR-930), 8). The State through Regional Director ANF Vs. Imam Bakhsh and others (2018 SCMR-2039), 9). Zahida Parveen alias Gooma and another Vs. The State and others (2019 PCr.LJ-1491), 10). Muhammad Arshad Mughal Vs. The State (2019 YLR-925), 11). Ali Jan Vs. The State (SBLR 2019 Sindh-808), 12). Abdul Sattar Vs. The State (SBLR 2019 Sindh-586) and 13). Haji Nawaz Vs. The State (2020 SCMR-687).

7. It is contended by learned DPG for the State that the appellants are neither innocent nor have been involved in this case falsely by the police and they on the basis of proper assessment of the evidence have been convicted and sentenced by the learned trial Court. By contending so, he sought for dismissal of the instant criminal appeal.

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

9. It is settled proposition of law by now that in the case of transportation or possession of Narcotics Substance, if the case is proved then technicalities of procedural nature or otherwise are to be overlooked.

10. In case of Ismaeel Vs. The State (2010 SCMR-27), it has been held by the 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. In case of present nature, the prosecution has only to show by evidence that the accused had dealt with the Narcotic Substance or has physical possession over it, or is directly concerned with it, then presumption would be that accused has committed such 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 Hon’ble 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 Punjab (AIR 1973 SC-2309)”

13. In the instant case, it is inter-alia stated by complainant Excise Inspector Talal Aziz and PW/Mashir E.C Piyaro that on 29.08.2018, they with rest of the Excise police personnel, when were performing their duty at Excise Check Post adjacent to “Wardak” Petrol Pump, Indus Highway, District Kashmore @ Kandhkot, there at about 01.30 p.m, they found coming a Truck from Punjab side. It was made to stop. It was found loaded with Gypsum powder and therein were found the appellants sitting. The driver disclosed his name to be Jan Muhammad while cleaner disclosed his name to be Hazratullah. A secrete cavity was found behind the driver’s seat of that Truck. It was opened and therein were found lying 19 packets of Charas, each was weighed to be 01 K.G, total 19 K.Gs. From each packet was segregated 200 grams of Charas as sample for chemical analysis. The Charas secured and segregated was sealed, a memo of arrest and recovery was prepared. The appellants with the recovery so made from them were taken to Excise Police Station, DIO Camp, Kashmore, there they were booked and reported upon accordingly.

14. The complainant and PW/Mashir E.C Piyaro despite lengthy cross examination have stood at their version, on all material points. In absence of any malafide, they could not be disbelieved only for the reason that they are the police officials. None of the appellants has claimed to be driver or cleaner of the Truck containing contraband substance. Surprisingly, the arrest and recovery of Charas in a manner claimed to be by the prosecution is not denied by the appellants. The defence which the appellants have put forth is that; they were passengers in the said Truck and have been substituted with the real culprits, who as per them were “Sangeen Khan and Ajab Gul”. The Truck could hardly be said to be a passengers’ vehicle, whereby one may undertake a long journey and allegation of substitution by the appellants with real culprits in absence of any proof, could hardly be said to be enough to absolve them of the liability. The appellants admittedly were found in possession of the Truck, it apparently was destined for a long journey, therefore, they are liable for the contents lying therein, which, as said above was contraband Substance, as is reported by the Chemical Examiner, which apparently is not disputed and was prepared within the time limit, prescribed by the law. Everybody can drive a vehicle. The driving license is legal requirement. Non recovery of driving license from either of the appellants is not enough to doubt the case of the prosecution. There is nothing in Law or Procedure, which could have prevented the complainant from conducting investigation of the present case. It is true that memo of arrest and recovery was prepared by Mashir E.C Piyaro, but it was done under the dictation of the complainant. No prejudice by such act is caused to either of the appellants. No rule or procedure or law was brought within the notice of the Court which could have prevented the complainant from conducting the investigation of the case himself. Needless to say that much of the investigation of the case like present one would stand completed on arrest of the accused with recovery of Narcotics Substance. No doubt, certain documents have been produced by the appellants to create an impression that the complainant of the present case is having a criminal record but those documents could hardly be made helpful to the case of appellants, simply for the reason that as per the complainant, he in those cases/charges has either been acquitted or absolved of the charge on inquiry/investigation.

15. In case of Mushtaq Ahmad Vs. The State and another (2020 SCMR-474), it has been held by the Honourable Apex Court that;

“Prosecution case hinged upon statements of two witnesses who were police officials---Said witnesses did not have any enmity with the accused, who was intercepted at a public place during routine search by the police---Narcotic, considerable in quantity, could not possibly be foisted upon the accused to fabricate a fake charge, that too, without any apparent reason---While furnishing evidence, both the witnesses remained consistent throughout and their evidence was confidence inspiring”.

16. The case law which is relied upon by learned counsel for the appellants is on distinguishable facts and circumstances. In case of “Abdul Rehman” (supra), the main reason for acquittal of the accused was that the police party went at the place of incident without associating with it, independent witness. In the instant matter, the police party was discharging its duty at Excise Check Post when the appellants came there with their Truck containing contraband substance. In case of “Abdul Ghani and others” (supra), the main reason for acquittal of the accused was that the safe transmission of the samples, the prosecution was not able to prove. In the instant case, the safe transmission of the sample, the prosecution has been able to prove by examining E.C Mumtaz Ali. In case of “Faizan Ali” (supra), the main reason for acquittal of the accused was that the property produced before the Court was found to be different from the one recovered from the place of incident. In the instant case, there is no allegation of substitution of the case property. In case of “Kamran Shah and others” (supra), the main reason for acquittal of the accused was that they were found to be passengers in a Bus. Bus is a passenger vehicle. In the instant case, the appellants were found to be in possession of the truck containing Charas. Truck is not a passenger vehicle. In case of “Mst.Razia Sultana” (supra), the main reason for acquittal of the accused was that the officer, who had taken the Narcotics Substance to the Chemical Examiner, was not examined. In the instant case, the officer who has taken the Narcotics Substance to the Chemical Examiner is examined by the prosecution. In case of “Muhammad Nawaz” (supra), the main reason for acquittal of the accused was that the recovered property was not produced before the trial Court. In the instant case, the recovered property is produced before the trial Court. In case of “Khair-ul-Bashar” (supra), the main reason for acquittal of the accused was that the report of chemical examiner produced before learned trial Court was not found to be valid. In the instant case, no question is raised by the appellants at trial that the report of the chemical examiner is not valid. In case of “The State through Regional Director ANF” (supra), the acquittal of the accused was challenged by the State. In the instant matter, no acquittal is challenged. In case of “Zahida Parveen alias Gooma and another” (supra), the main reason for acquittal of the accused was that representative sample from each packet of recovered Charas was not separated. In the instant case, the representative sample of the Charas from each packet is separated and sealed. In case of “Muhammad Arshad Mughal” (supra), the main reason for acquittal of the accused was delay in registration of the FIR. In the instant matter, there is no delay in registration of FIR. In case of “Ali Jan” (supra), the main reason for acquittal of the accused was that the investigation was not found to be honest. In the instant case, the investigation is found to be honest. In case of “Abdul Sattar” (supra), the main reason for acquittal of the accused was that there were major contradictions in evidence of the PWs. In the instant case, no material contradiction in evidence of the witnesses is found apparent. In case of “Haji Nawaz” (supra), the main reason for acquittal of the accused was that the positive report of Forensic Science Laboratory was not put to the accused during course of his examination under section 342 Cr.PC. In the instant case, the report of Chemical Examiner is put to the appellants during course of their examination under section 342 Cr.PC.

17. The appellants have failed to establish any prima facie mis-reading or non-reading of evidence on record or failure on part of the learned trial Court in following the settled principle of law of appreciation of evidence. Thus, the learned trial Court has rightly found the appellants to be guilty of the above said offence.

18. In view of the facts and reasons discussed above, it is concluded that the conviction and sentence awarded to the appellants by learned trial Court are not calling for interference by this Court by way of instant appeal. It is accordingly dismissed.

JUDGE