Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Jail Appeal
No. D- 176 of 2017
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Khadim Hussain Tunio.
Date
of hearing: 23.10.2019
Mr. Rukhsar Ahmed
Junejo Advocate for Appellant.
Mr. Zulifqar Ali
Jatoi, Additional P.G.
.-.-.-.-.-.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Asad
Khan alias Kareem Khan appellant was tried by learned Special Judge for CNS Naushehro
Feroze for an offence under section 9 (c) Control of Narcotic Substances Act, 1997.
After regular trial, vide Judgment dated 26.09.2017 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 of prosecution
case are that on 07.11.2014 at 09:30 p.m. Bisharat Hussain Khushk Excise
Inspector was posted at Excise Police Station Kandiaro. On the same date, he
along with his subordinate staff namely ECs Lal Bakhsh, Rustam Ali, Zubair,
Abdul Hakeem and Sabir Hussain left excise office vide roznamcha entry No.2 in
the private vehicle, for checking the vehicles at excise check post Rasool Abad
on the National Highway. It is alleged that on 08.11.2014 at about 5.00 a.m,
Inspector noticed a truck coming in fast speed from Sukkur side and excise
officials signaled it to stop. The driver accelerated it’s speed and did not
stop. Thereafter, excise party followed the vehicle and ultimately got it to
halt, at Sukhio Khan Solangi Hotel on the National Highway. The registration
number of the said truck was TAA-271. Excise officials found the appellant
while driving truck. Excise Inspector made ECs Lal Bakhsh and Rustam Ali as
mashirs and in their presence enquired the name of person / driver and about
his address, to which he disclosed his name as Asad Khan @ Karim Khan son of
Nadir Khan by caste Niazi resident of Buledi Beet, Customs Road Quetta. Excise
officials conducted search of the truck and secured the registration documents
from its dash / switch board, in the name of Abdul Jabbar son of Abdul Khalique
bycaste Niazi Pathan originally resident of Zhob now at Hub. The personal
search of the accused was conducted and cash of Rs. 3000/- was recovered. On
the search of rear side of the truck, it was noticed that there was a secret cavity.
Excise officials opened it and found packets of charas wrapped in plastic
covers. The said packets were taken out and counted to be 200 in numbers. All the 200 packets were weighed and found to be
of one kilogram each, total 200 K.Gs. Thereafter, Excise Inspector in presence
of mashirs took out / drawn 100 grams charas from each packet for sending to
the chemical examiner for analysis. The samples were put in sack / bag and
sealed separately while the remaining charas was sealed in 10 bags / sacks with
20 packets in each separately. Accused was arrested, truck was also seized and
such mashirnama was prepared at spot, it was attested by mashirs ECs Lal Bakhsh
and Rustam Ali. Thereafter, accused and case property were brought to the
excise Police Station Kandiaro, where Inspector lodged FIR against the accused
on behalf of State. It was recorded vide crime No. 05/2014 under section 9 (c) Control of Narcotic Substances Act,
1997. After making the necessary entry in the roznamcha, complainant / Excise
Inspector recorded 161 Cr.P.C statements of the witnesses and on the same date
(08.11.2014) sent / dispatched the samples to the Chemical Examiner Rohri for
analysis through EC Zubair. Investigation Officer then sent the registration documents
secured from the truck for their verification to the concerned office at
Habb. Investigation Officer made efforts for the arrest of accused Abdul Jabbar,
owner of the truck, but without any success. On the conclusion of usual investigation,
challan was submitted against accused Asad Khan under section 9 (c) CNS Act,
1997, accused Abdul Jabbar was shown as absconder. Trial Court proceeded
against absconding accused Abdul Jabbar under section 512 Cr.P.C and
proceedings under sections 87/88 Cr.P.C were concluded against him.
3. Trial Court framed charge
against appellant at Exh.05, appellant pleaded not guilty and claimed to be
tried.
4. In order to substantiate
the charge, prosecution has examined PW‑1 Bisharat Hussain Khushk, Excise
Inspector at Exh.07 who produced extracts of roznamcha entry No.2 dated
7.11.2014 at Exh.7-A, mashirnama of arrest of accused, recovery and seizure of
the truck at Exh.7-B, copy of FIR at Exh. 7-C and positive report of chemical
Examiner at Exh.7-D and verification report of truck received from Motor
Registration authority at Exh.7-E. P.W 2/mashir
EC Lal Bakhsh has been examined by the prosecution at Exh.8. 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. He has
raised plea that P.Ws have deposed against him falsely because they are Excise officials.
Accused did not lead evidence in defence. In a question, what else he has to
say? Accused has replied as under:
“ I am innocent. I was employed as cleaner on
the truck by its driver Adam Khan Achakzai resident of Pisheen after death of
my father. I was infact only for two days on the truck. It was loaded with
stone taken from village simly district Kutchlak Balouchistan and off loaded at
Jacob Abad. Thereafter the driver Adam Khan drove the truck and I was sleeping
in it. I woke up when the truck was intercepted by Excise Police. The police secured charas and
arrested me as also driver Adam Khan but subsequently let off the driver and
challaned me in the case. I pray for justice”.
Accused Asad Khan examined
himself on oath in disproof of prosecution allegations at Exh.11, he has stated
that he was working as cleaner on the said truck. One Adam Khan was driver of
the said truck. The vehicle was loaded with crush and stones. Appellant had no
knowledge about the charas lying in it. However, he has deposed that police
arrested him and brought at Excise office Kandiaro at 7.00 a.m and said Adam
Khan was released by the police and he was challaned in this case falsely. He has
further stated that he had joined as cleaner on the said truck by Adam Khan and
said Adam Khan had assigned him duty of driver on the truck at the salary of
Rs. 7000/- per month.
6. Trial
Court after hearing learned counsel for the parties and assessment of the
evidence vide Judgment dated 26.09.2017 convicted and sentenced the appellant
as stated above. Hence, this appeal.
7. Learned
advocate for the appellant mainly argued that there are material contradictions
in the evidence of prosecution witnesses. It is further contended that PW-1
complainant Excise Inspector has deposed in his evidence that he completed the formalities
at spot within 3/4 hours, whereas PW-2 EC Lal Bakhsh has deposed that all the formalities
were completed within 30 minutes. Counsel for the appellant argued that there
is ambiguity in the report of chemical examiner with regard to description of
sealed parcel; in the report, it is mentioned that one sealed plastic katta
contains (200) white paper packets containing two black brown coloured each
wrapped in plastic and each packet tied with thread. Counsel for the appellant vehemently
argued that description of articles contained in parcel of chemical examiner is
different from mashirnama of recovery. It is further argued that charas was
dispatched to the chemical examiner through EC Zubair but prosecution has
failed to examine him at trial. Learned defence counsel submitted that in the
report of chemical examiner, percentage of narcotic substances has not been
mentioned. The said omission would be fatal to the case of prosecution. Lastly,
argued that all the PWs were excise officials and interested, no private person
was associated to act as mashir in this case. In support of his contentions, he
relied upon the case of Muhammad Naeem and another v. The State and others (PLD
2019 Supreme Court 669).
8. Mr. Zulifqar Ali Jatoi
Additional Prosecutor General argued that prosecution has proved it’s case against
the appellant and contradictions pointed out by defence counsel are minor in
nature. It is further argued that charas was sent to chemical examiner on the
same day, which excluded possibility of tempering. Mr. Jatoi argued that in
the mashirnama, it is mentioned that total 20 kilograms was sent to the
chemical examiner and there were 100/100 grams charas in each packet and sample
was sent to the chemical examiner in plastic bag and it was sealed. It is argued that driver cannot be absolved
from responsibility and Excise officials are as good witnesses as other
witnesses, they had no motive to foist huge quantity of charas upon appellant.
Lastly, prayed for dismissal of appeal.
9. We have carefully heard the
learned counsel for the parties and perused the relevant record.
10. Record reflects that Bisharat
Hussain, Inspector (PW-1) has deposed that on 07.11.2014, he along with his
subordinate staff left Excise Office vide roznamcha entry No.2 for checking the
vehicles at Excise Check Post Rasoolabad on the National Highway. At about 5.00
a.m (08.11.2014), Excise officials noticed one truck appearing fast from Sukkur
side and it was stopped at Sukhio Khan Solangi Hotel on the National Highway. Excise
Inspector made ECs Lal Bakhsh and Rustam Ali as mashirs. On the inquiry, driver
disclosed his name as Asad Khan son of Nadir Khan, by caste Niazi, resident of
Quetta. Truck was searched. Registration documents in the name of one Abdul
Jabbar were found. During search of the truck, one secret cavity was found and
it was opened. Charas was found wrapped in coloured plastic covers. Said
packets were 200 in number. All the 200 packets were weighed and found to be of
01 kilogram each, total 200 kilograms. Excise officials took 100 grams from
each packet for samples for sending to the chemical laboratory for analysis.
The samples were put in one sack / bag and sealed separately while remainder was
sealed in 10 bags / sacks with 20 packets in each separately. Accused was
arrested. Truck was seized. Mashirnama of arrest and recovery was prepared in
presence of the mashirs ECs Lal Bakhsh and Rustam Ali. Thereafter, accused and
case property were brought to Excise Police Station. Excise Inspector lodged an
FIR against the accused on behalf of the State under section 9 (c) Control of
Narcotic Substances Act, 1997; he recorded 161, Cr.P.C statements of PWs and on
the same day, sent samples to the Chemical Examiner Rohri for analysis through
EC Zubair. Positive report was received. Challan was submitted against the
accused. PW-1 was cross examined by the learned counsel for the appellant. He
has denied the suggestion that charas has been foisted upon the accused. He has
also denied the suggestion that false case has been registered against the
accused. EC Lal Bakhsh (PW-2) has acted as mashir in this case. He was also
under the subordination of Inspector at the time of recovery of the charas from
the truck of the accused. PW-2 has narrated entire facts and stated that
accused was driving truck at the relevant time and from the secret cavity, 200
packets of charas were recovered. Each packet was of 1 kilogram, total charas
was 200 kilograms. From each packet, 100 grams of charas were taken for sending
to the chemical examiner. The same were put in a separate bag and sealed
separately. Remaining property was also sealed separately and he acted as
mashir of arrest and recovery. He was also cross examined at length. He has
denied the suggestion that accused was not driving the truck at the time of his
arrest. He has also denied the suggestion that he was deposing falsely against
the accused at the instance of his superiors.
11. We have carefully perused the evidence of
the witnesses constituting an uninterrupted chain of facts ranging from seizure
to forensic analysis of the contraband; the witnesses are in a comfortable
unison on all the salient details regarding interception of the huge quantity
of charas as well as steps taken subsequent thereto. Separation of samples for
chemical analysis, taken from each bundle, is found by us as exercise
sufficient to constitute forensic proof. Appellant was driving the truck at the
relevant time. Thus, trial Court rightly held that he was responsible for
transportation of narcotics. Report of Chemical Examiner (Exh.7-D) corroborates
the evidence of Excise officials. It is the matter of record that the charas
was recovered from the truck of accused on 08.11.2014 and on the same day, it
was sent to Chemical Examiner. Chemical Examiner did not find any tampering
with the sealed plastic katta which was sent by the I.O to the Chemical
Examiner, report was positive. Learned counsel for the appellant despite being
at his best has not been able to point out any serious flaw or infirmity that
may be viewed as material or substantial in nature in the statements of the
prosecution witnesses. An alleged discrepancy in the description of the
contraband recovered, between mashirnama of recovery and chemical examiner’s
report went unchallenged during the trial and as such the appellant cannot
claim any benefit thereof in the absence of confrontation within the
contemplation of Article 140 of the Qanun-e-Shahadat Order, 1984. The
contention of learned counsel for the appellant that the evidence of PWs is not
reliable as the same suffers from material contradictions and inconsistencies.
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
would not be fatal to the case of prosecution. 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). Defence plea appears to be afterthought and it is rightly
disbelieved by trial Court. Huge quantity of 200 K.Gs charas cannot be possibly
foisted in routine. Excise 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 unreported Judgment passed by Hon’ble Supreme Court
in Criminal Appeal No.319-L/2017 dated 27.06.2019, it is held as under:-
“ 3. Contents
of the impugned pamphlets are repugnant and abhorrent to say the least; too
nauseatic to be reproduced; capable of causing most grievous offence; these
contravene all the limits of decency, an obligation sanctimoniously upheld by
every faith. The argument that mere possession of the impugned material by
itself would not attract the mischief of the section ibid, without actual
distribution, is naively beside the mark. A plain reading of Section 9,
unambiguously, suggests that possession of the inflammatory material by itself
is an offence even before it is distributed; the legislature intended to nip
the evil in the bud and rightly so given the inflammatory potential of the
crime. Arrested red-handed, objection over non-association of public witnesses
to confirm the possession does not hold water either. Police officials, being
functionaries of the State, are no less credible witnesses to drive home the
charge in a milieu of pervasive apathy towards civic responsibilities; people
prefer to recuse behind safety instead of coming forward in aid of justice. The
officials who testified in the witness-box had seemingly no axe to grind,
otherwise, found by us in a comfortable unison with one another. Police
officials are as good witnesses as any other and their evidence is subject to
same standard of proof and principles of scrutiny as applicable to any other
category of witnesses; in the absence of any animus, infirmity or flaw in their
depositions, their statements can be relied without demur. View taken by the
Courts below, well within the remit of law, calls for no interference. Criminal
Appeal fails. Dismissed. ”
In another unreported 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 observed
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. ”
12. For
the above stated reasons, we have come to conclusion that prosecution had proved
it’s case against the appellant. Impugned judgment requires no interference by
this Court. Appeal is without merit and the same is dismissed with slight
modification, in case of default in payment of fine, appellant shall suffer S.I
for 06 months instead of one year.
__________________
J U D G E
__________________
J U D G E
Irfan/PA
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.