Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Appeal No. D- 76 of 2015
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Khadim Hussain Tunio.
Date
of hearing: 15.10.2019
Mr. Abdul Baqi Jan
Kakar Advocate for Appellant.
Mr. Mohsin Ali
Special Prosecutor ANF.
.-.-.-.-.-.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Nabi
Bakhsh Shahwani Balouch appellant was tried by learned Sessions Judge / Special
Judge (CNS) Sukkur for offence under sections 9 ( c ) Control of Narcotic
Substances Act,1997. After regular trial, vide Judgment dated 30.07.2015 appellant was convicted for offence under
section 9 (c) CNS Act, 1997 and sentenced to imprisonment for life and to pay
fine of Rs. 100,000/- ( one lac ), in case of non payment of fine, he was
ordered to suffer S.I for one year.
However, appellant was extended benefit of Section 382‑B Cr.P.C.
2. Brief facts leading to the
filing of appeal are that on 05.03.2013 Inspector Tahir Ahmed of A.N.F Sukkur
received spy information that an interprovincial narcotics smuggler Agha Jan
R/O Quetta would smuggle huge quantity of narcotics through his agent, in Truck
No. TKQ-088 Nissan, having white colour from Quetta to Sukkur via Shikarpur. On
receipt of such information, from higher authorities, a raiding party was
constituted by the Inspector consisting of N/S Arsahd Raza, ASI Syed Salman, HC Abdul Wahab, PCs Abdul Hafeez, Muhammad
Haneef, Zaheer Ahmed, LNK Yousif Ali, PC drivers Saifullah, Zafar Rehman and
other ANF officials. ANF Party left in two Government vehicles from police
station vide roznamcha entry No.10 at 0400 hours reached near Railway Flyover Naz
Bypass road, Sukkur and held Nakabandi
at 0515 hours. It is stated that said Truck bearing No.TKQ-088 appeared from
Shikarpur side which was stopped and appellant was sitting on the driving seat.
Due to non availability of the private persons at spot, Inspector Tahir Ahmed
made ASI Syed Salman and PC Zaheer Ahmed as mashirs and asked the accused about
his name and his address, to which he disclosed his name as Nabi Bakhsh son of Rasool Bakhsh bycaste
Shahwani Balouch R/O Quetta. He further disclosed that he was driving the said
truck. On the enquiry, accused disclosed that 250 packets of Charas were lying
/ kept in secret cavity of the fuel tank on the left side of truck. Thereafter,
said charas was recovered from the secret cavities, on the pointation of the
accused. Each packet was opened, checked and found 2 slabs of Charas. Each
packet was weighed separately, per packet there was 1/1 kilogram having total
weight of 250 kilogrmas of Charas, out of which, multi coloured foil pack
packets 50 in number having weight 50 K.gs were put into green colour plastic
gunny bag and sealed for chemical analysis. Remaining charas 40/40 kilograms were sealed
separately, in five gunny bags. Perosnal search of the accused was conducted
and one bill of loading receipt, copy of CNIC of the appellant, challan receipt
of the motorway police, mobile phone Nokia with sim and cash of Rs.500/- were
recovered. Thereafter, accused was arrested in presence of mashirs. Case
property was separately sealed. Samples were also sealed at spot. Thereafter,
accused and case property was brought at Police station. In the FIR, Truck No.
TKQ-088 has been mentioned so also its
engine and chasis numbers. FIR was lodged against the accused on behalf of
State by Inspector Tahir Ahmed which was recorded vide crime No.05 of 2013 for
offence under section 9 (C) CNS Act, 1997. On the second day, sample of 50
Kilograms in one sealed plastic katta was sent to Chemical Examiner Rohri for analysis.
161 Cr.P.C statements of the P.ws were recorded. After receipt of the positive
report from the Chemical Examiner and on the conclusion of investigation
challan was submitted against the
accused for offence under section 9 ( c) CNS Act, 1997.
3. Trial Court framed charge
against appellant under above referred section at Exh.04 to which appellant
pleaded not guilty and claimed to be tried.
4. In order to substantiate
the charge, prosecution has examined PW‑1 mashir ASI Syed Salman at
Exh.07 who produced attested copy of entry No.10 at Exh.7-A and mashirnama of
arrest and recovery at Exh.7-B. Prosecution has also examined complainant
Inspector Tahir Ahmed at Exh.8 who produced FIR at Exh.8-A and positive report
of Chemical examiner at Exh.8-B. Thereafter, prosecution side was closed
5. Trial
Court recorded statement of accused U/S 342 Cr.P.C at Exh.10. Accused claimed
false implication in this case and denied the prosecution allegations. Regarding
positive report of the Chemical Examiner, he has raised plea that it has been
managed. In a question what else he has to say? Accused has replied that truck
did not belong to him and he was arrested from the Quetta. Accused has examined himself on oath in
disproof of prosecution allegation at Exh.11. In defense appellant / accused also
examined D.Ws Noor Ahmed and Abdul Qudoos.
6. Trial
Court after hearing learned counsel for the parties and assessment of the
evidence vide Judgment dated 30.07.2015 convicted and sentenced the appellant
as stated above. Hence, this appeal.
7. Learned
advocate for the appellant mainly argued that prosecution has utterly failed to
establish its case against the appellant; that the safe custody and safe
transmission of the charas to the Chemical Examiner have also not been
established. He also argued that prosecution has failed to examine the Head
Muharir of the Police Station. It is also argued by the counsel for appellant
that Inspector Tahir Ahmed in his evidence no where has stated that accused
pointed out the secret cavities in truck. He has further submitted that
positive chemical report was received by the Investigation Officer after seven
days for which no plausible explanation has been furnished; that attested copies of arrival and departure roznamcha
entries have been produced in evidence but the original have not been produced.
It is also argued that there are material contradictions in the evidence of
prosecution witnesses on so many material particulars of the case and
prosecution has failed to establish its case. In support of his contentions, he
has relied upon the cases of Ikramullah and others vs. The State (2015 SCMR
1002) and Abdul Ghani and others vs. The State and others (2019 SCMR 608).
8. Mr. Mohsin Ali Special
Prosecutor ANF submits that arrival and departure entries have been produced
before the trial Court. He further submits that as regards to the contention of
defense regarding safe custody and safe transmission of charas to the chemical
examiner are concerned, no question with regard to the tampering or
manipulation has been put up to the prosecution witnesses during cross
examination. He further submits that it was quite difficult for the ANF to
foist such huge quantity of the charas upon the appellant. Lastly, it is argued
that evidence of the ANF officials is as good as of private persons. In support
of his contentions he has relied upon the cases of Shah Muhammad vs. The State
(2012 SCMR 1276) and Muhammad Sarfraz vs. The State and others (2017 SCMR
1874).
9. We have carefully heard the
learned counsel for the parties and perused the relevant record.
10. Inspector Tahir Ahmed (PW-2)
the head of ANF officials has deposed that on 05.03.2013 he had received spy
information through his superiors that interprovincial drug dealer Agha Jan
resident of Quetta would smuggle huge quantity of charas through accused Nabi
Bakhsh in truck bearing No. TKQ-088 of white colour from Quetta to Sukkur via
Shikarpur. On receipt of such information, raiding party was constituted by
him. Thereafter, he proceeded to the pointed place and held NAKBANDI . He has
further stated that he had made entry at ANF Police station. At 0515 hours
Truck bearing registration of No. TKQ-088 appeared form Shikarpur side. It was
stopped, which was being driven by the appellant. He was apprehended. Due to
non availability of private persons, Inspector made ASI Syed Salman and PC
Zaheer Ahmed as mashirs. On enquiry, Inspector enquired his name to which he
disclosed his name as Nabi Bakhsh son of Rasool Bux Shahwani Balouch resident
of Quetta. He has further deposed that accused after avoiding, finally disclosed
that there was charas in the fuel tank on the left side of the truck. It was
recovered on his pointation, in all there were 250 packets. Same packets were
checked one by one and charas was found in the shape of slabs. Each packet was
weighed separately and became one kilogram and in all there were 250 kilograms
of the charas. Out of which 50 packets were separated and separately sealed for
chemical analysis and remaining property was also separately sealed. From the possession of the accused, some
articles were recovered such as CNIC, one bullity, receipt of challan of
Motorway. Thereafter, mashirnama of arrest and recovery was made in presence of
above said mashirs. Thereafter, accused and property were brought at Police
station and FIR was lodged against the accused. On the next day 6.3.2013 sample was sent to the chemical examiner in
one sealed plastic katta through Pc Abdul Hafeez for chemical analysis and
report. Investigation Officer received the positive report and produced at
Exh.8-B. He was cross examined by the defense counsel at length and stated that
PC Abdul Hafeez has not been examined before the trial Court. He has also
replied that Incharge of the Malkhana has also not been examined. Prosecution
in order to substantiate the case, has also examined SIP Syed Salman who was
member of raiding party and mashir in this case. He has also given the same episode
and stated that appellant was arrested from the Byepass Sukkur when he was
driving the truck and from secret cavities of the truck charas was recovered on
the pointation of the accused. He has deposed that there was one kilogram
charas in each packet and total weight was 250 kilograms and 50 packets
weighing 50 kilograms of charas were separated out of recovered charas for
sending to Chemical Examiner. He was also cross examined at length and denied the
suggestion that he was deposing falsely at the instance of complainant.
D.Ws Noor Ahmed (Ex. 12)
and Abdul Qudoos (Ex.13) have deposed that they reside at Qambrani road Quetta.
On 01.03.2013 at 11.00 a.m appellant was picked up from his house by F.C in two
government vehicles. After some time they came to know that appellant has been
involved by A.N.F in narcotic case. D.Ws could not explain as to why they
remained silent and did not complain the high officials against F.C. We are also of the considered view that
defense plea has rightly been rejected by the trial Court as defense theory was
after thought.
11. After
hearing the learned counsel for the parties, we have carefully scanned the
evidence available on record.
12. Close scrutiny of evidence shows
that prosecution has succeeded to prove its case that appellant was driving the
Truck No.TKQ-088 on 05.03.2013 at 0515 hours. He was arrested red-handed and on
his pointation from secret cavities at oil tank, charas was recovered by ANF
officials. Evidence of Inspector Tahir Ahmed (PW-2) and mashir Syed Salman
(PW-1) is trust worthy and confidence inspiring. It is well settled principle
that a person who is on driving seat shall be held responsible for
transportation of the narcotics as held in the case of Kashif Amir vs. The
State ( PLD 2010 Supreme Court 1052). Appellant was driving the vehicle. He was
incharge of the same and vehicle was under his control and possession. Hence,
the charas recovered from the secret cavities would be under his control and
possession. Report of Chemical Examiner was also in positive. As regards to the
contention of the defense counsel that prosecution has failed to prove safe
custody and safe transmission of the charas to the chemical Examiner. It may be
mentioned that in cross examination of P.Ws, no question has been put by defense
counsel that there was tampering with the case property at Police station or
during transmission to expert. It is the matter of record that the charas was
recovered from the truck of accused on 5.3.2013 and on the next day, promptly it
was sent to Chemical Examiner. Most material piece of evidence is positive report
of the Chemical Examiner. Chemical Examiner in his report at Exh.8-B has
mentioned that one sealed plastic katta bearing 1 seal, perfect as per copy was
received by him. Chemical Examiner did not find any tampering with the sealed plastic
katta which was sent by the I.O to the Chemical Examiner. Therefore, we hold
that charas was safely transmitted to chemical expert. The contention of
learned counsel for the appellant that the evidence of PWs 1 and 2 is not
reliable as the same suffers from material contradictions and inconsistencies,
regarding size of the secret cavity / tank from which charas was recovered and
contradictions with regard to the registration numbers of official vehicles
used by ANF officials for arrest and recovery of the appellant. The alleged contradictions
in the testimony of PWs 1 and 2 that are being urged by the counsel for appellant
are minor in nature. Such minor contradictions do not affect the core of
prosecution case. The discrepancies pointed out in the evidence of both
prosecution witnesses regarding the size of the tank and registration number of
the official vehicles, it is observed that ANF officials had no measurement tap
with them. Variation in size was not material. Non-mention regarding numbers of
the official vehicle used by ANF officials would also not be fatal to the case
of prosecution. Even otherwise, the
power of observation of persons differs from person to person witnessing the
recovery proceedings. It is fairly well
settled that minor discrepancies in the evidence of the raiding party do not
shake their trust worthiness as held in the case of State /ANF vs. Muhammad
Arshad (2017 SCMR 283). Learned counsel
for the appellant has raised objection over the non-association of the public
witnesses to the recovery proceedings. In this case, on spy information
appellant was arrested from Railway Fly over Naz Byepass road
Sukkur on 05.03.2013 at 0515 hours, when he was sitting on driving seat of truck.
On the enquiry, by ANF officials he pointed out secret cavity at oil tank and
produced 250 kilograms of charas. Appellant was arrested red-handed, objection
over non-association of public witnesses to confirm the possession of the
charas from the vehicle does not hold water either. ANF officials, being the
functionaries of the State, are no less credible witnesses to drive home the
charge in a milieu of pervasive apathy towards civic responsibilities, people
refer to recuse behind safety instead of coming forward in aid of justice. In
the present case, it was 0515 hours, despite lengthy cross examination,
availability of private witnesses has not come on record because it was dawn
time. ANF officials are as good
witnesses as any other and their evidence was subject to same standard of proof
and principles of the scrutiny as applicable to any other category of
witnesses; in absence of any animus, infirmity or flaw in their depositions,
their testimony can be relied without demur. In the recent Judgment passed by Hon’ble
supreme Court in Criminal Petition No.83-P/2013 & Jail Petition No.474/2017
dated 27.09.2019, it is held as under:-
2. Validity
of confessional statements as well as prosecution’s failure to establish safe
custody and transmission are the main planks stressed on behalf of convicts
besides non-availability of public witnesses to attest the recovery.
3. Confessional
statements before Tilla Muhammad, Judicial Magistrate (PW-1),though retracted
subsequently present formidable piece of evidence, inexorably pointed upon the
convicts’ culpability. Mst. Robina made disclosure within a small span of time
soon after her arrest, during her first appearance before the Magistrate, Izzat
Ullah the suit; both of them after having been administered warnings and
cautions, though disapprovingly on a printed format, nonetheless, made
statements otherwise found by us as voluntarily, natural and truthful with
relevant details compatible with the salient features of the case; brief
interregnum rules out hypothesis of manipulation. Other pieces of evidence have
been found by us as independently sufficient to drive home the charge; forensic
report confirms the lethal nature of the substance, recovered in a quantity
that cannot be possibly foisted in routine; seizure of the vehicle clinches the
case. Argument of safe custody does not hold much water as Abdul Faraz 28/C
(PW-10) took the sample to the Forensic Science Laboratory along with Rahdari
Ex.PW8/c was not cross-examined despite opportunity. Forensic Report (Ex.PZ)
corroborates the position taken by the said PW. Absence of public witnesses is
beside the mark; public recusal is an unfortunate norm. Prosecution witnesses
are in a comfortable unison; being functionaries of the Republic, they are
second to none in status and their evidence can be relied upon unreservedly, if
found trust worthy, as in the case in hand. Both the Courts below have undertaken
an exhaustive analysis of the prosecution case and concurred in their
conclusions regarding petitioners’ guilt and we have not been able to take a
different view than concurrently taken by them. Petitions fail. Dismissed.
13. While relying
upon the above cited authorities of Hon’ble Supreme Court and looking to the
facts and circumstances of the case, we have no hesitation to hold that prosecution
has established its case against the appellant. Impugned judgment requires no
interference and appeal is without merit and the same is dismissed with slight
modification in case of default in payment of fine, appellant will suffer S.I
for six months instead of S.I for one year.
__________________
J U D G E
__________________
J U D G E
Irfan/PA
As regards to the appeals against acquittal are
concerned, acquittal of the respondents Muhammad Shahrukh and Muhammad Waqar by
the trial Court was neither perverse nor arbitrary. Therefore, acquittal order
recorded in favour of respondents cannot be interfered by us. Even otherwise
the scope of acquittal appeal is quite narrow and limited as held in the case
of The State and others v. Abdul
Khaliq and others (PLD 2011 Supreme
Court 554).
,
relevant position is re-produced as under :
“ 6. We have noted that there is no material omission or
contradiction in the depositions of the prosecution witnesses. The doctor i.e.
PW-5 first administered the requisite medicine and thereafter the respondent
excreted capsules under the watch of ANF Staff, who were deputed for such
purpose. The excreted capsules were then produced before the doctor. In the
presence of deposition of the doctor who after noticing foreign bodies in the
X-Ray administered medicine to facilitate excretion as well as the depositions
of ANF staff in whose presence respondent excreted capsules, it matters not
whether the respondent excreted the capsules on the bed or in the toilet or
whether the capsules were washed or not as such details are of no relevance. It
has come in the evidence that the recovered capsules after excretion were
immediately presented to the concerned doctor and then were sealed and sent to
the Chemical Examiner. Upon chemical examination it was confirmed that the
capsules contained 550 grams of heroin powder. No contradictions on this
material aspect of the case has been extracted from the prosecution witnesses.
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. Thus, there exists ample evidence on record to find the respondent guilty
and the Trial Court rightly convicted him.”
Learned counsel for the appellant argued that
prosecution has failed to establish safe custody and safe transmission of the
charas to the Chemical Examiner. It is a matter of record that charas was
recovered on the pointation of appellant from his Truck on 5..3.2013 at 0515 hours,
mashirnama of arrest and recovery was prepared and case property as well as
samples were separately sealed at spot. On the next day samples were sent to
the Chemical Examiner and Chemical Examiner in his report at Exh. 8-B has
mentioend that he received one sealed plastic Katta bearing one seal. Seals
were perfect as per copy sent. This clearly shows that after recovery of the
charas from secret cavities of the truck, samples were sealed and sealed
parcels were sent to the Chemical Examiner and he received sealed Katta. There
is nothing on record that there was tampering, manipulation or replacement in
the sealed material.