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.