ORDER SHEET

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal.No.D-68 of 2016.

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DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah,

Mr. Justice Shamsuddin Abbasi,

For hearing of main case.

02.11.2021

Mr. Mazhar Ali Bhutto, Advocate for the appellant.

Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.

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IRSHAD ALI SHAH, J;- The appellant by preferring the instant criminal jail appeal has impugned judgment dated 27.09.2016, whereby he for an offence punishable under section 9 (c) of CNS, Act, 1997, has been convicted and sentenced to undergo imprisonment for life and to pay fine of rupees Two Lacs and in case of non-payment whereof, to undergo imprisonment for one year by learned Special Judge, (CNSA) Jacobabad.

2. It is the case of prosecution that the appellant was found carrying/transporting through his Truck, 40 K.Gs of Charas, by police party of P.S Excise Jacobabad Circle, which was led by Excise Inspector Muhammad Iqbal Arbani, for that he was booked and reported upon.

3. The appellant denied the charge and the prosecution to prove it, examined Complainant Excise Inspector Muhammad Iqbal Arbani and PW/Mashir E.D Muhammad Hashim and produced through them the relevant documents and then closed its side.

4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by inter-alia stating therein that the Charas has been foisted upon him, the actual culprit has been let off by the police and such news was published in daily Sindhi newspaper “Ibrat”. However, he neither examined any one in his defence nor himself on oath to prove his innocence.

5. On the basis of evidence, so produced by the prosecution, the appellant has been convicted and sentenced, as is detailed above.

6. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police by substituting him with the real culprit being driver of another Truck; there is no independent witness to the incident; no driving license has been secured from the appellant; the persons who sealed the Narcotics Substance and took the samples whereof to the Chemical Examiner have not been examined by the prosecution and the investigation of the case has been conducted by the complainant himself; the ownership of the subject Truck has not been ascertained, therefore, the appellant is entitled to his acquittal, as the case against him is not free from doubt. In support of his contentions, he relied upon cases of Ali Hassan Vs. The State (PLD 2001 Karachi-369) and Miandad Vs.The State (2019 YLR-954).

7. Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of instant criminal jail appeal by contending that the prosecution has proved its case against the appellant beyond shadow of doubt. In support of his contentions, he relied upon cases of Shazia Bibi Vs. The State (2020 SCMR-460) and Mushtaq Ahmed Vs. The State and another (2020 SCMR-474).

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

9. It is settled by now that if the case of transportation or possession of “Narcotics Substance” is proved, then technicalities of procedural nature 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 like 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 the presumption would be that he has committed the offence alleged against him unless he 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 the cases of Inder Sain v. State of Punjab (AIR 1973 SC-2309)”.

13. In present case, it has inter-alia been stated by complainant Excise Inspector Muhammad Iqbal Arbani and PW/Mashir E.D Muhammad Hashim that on 30.09.2014, they with rest of the Excise police personnel, were performing their duty at Excise Check Post, adjacent to Agricultural College, Jacobabad, there at about 07.00 p.m, they found coming a Truck from northern side, it was signaled to stop, the appellant was found driving the said Truck and on search, a secret cavity under its driver’s seat was found and therein were found lying concealed 40 packets of Charas, those were taken out, each one was found containing four slabs, total 160 slabs, each slab was weighed to be 250 grams, making total of 40 K.Gs, from each slab was taken out 125 grams of Charas for chemical examination, the Charas so secured and separated then was sealed, such mashirnama was prepared and the appellant with the recovery so made, then was taken to Excise P.S, Jacobabad Circle, there he was booked in the present case formally and challaned after usual investigation. Despite lengthy cross examination, they have stood at their version on all material points with regard to recovery of Charas from the appellant in a fashion alleged by them. No independent person as per them was found available at the place of incident to have been made as mashir to witness the arrest and recovery; even otherwise, they could not be disbelieved or doubted in their version only for the reason that they are Excise Police officials. Apparently, they were having no ill-will or grudge with the appellant to have involved him in this case falsely by substituting him with the real culprit. The substitution of innocent person with real culprit even otherwise is rare phenomenon. The evidence of the complainant and his witness finds support strongly in shape of recovery of huge quantity of Narcotics Substance from the appellant which he was carrying through his Truck, with remote chance of its foistation. Neither the appellant has examined himself on oath or anyone else to prove that he actually was substituted with the real culprit; therefore, plea of innocence on his part is appearing to be ignored as an after-thought. The license to drive a vehicle is legal requirement; its non recovery is not enough to conclude that the appellant was having no skill to make driving. The appellant could not be declared to be innocent ignoring the recovery of huge quantity of Charas from him, only for the reason that the prosecution has not been able to ascertain the ownership of the subject Truck. There was no allegation of tampering or substitution with Narcotics Substance so recovered or samples thereof, which were sent to the Chemical Examiner for chemical examination, therefore, the examination of persons, who sealed the Narcotics Substance or took the samples whereof to Chemical Examiner, was hardly required. No provision of law is brought which could have prevented the complainant being Excise Police officer from conducting the investigation of case of like nature on behalf of the State. By such an act, no prejudice even otherwise is caused to the appellant, which may justify extending him benefit of doubt. In these circumstances, learned trial Court was right to make conclusion that the prosecution has been able to establish its case against the appellant beyond shadow of doubt.

14. 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 is hinged upon the statements of Aamir Masood, TSI (PW-2) and Abid Hussain, 336-C (PW-3); being officials of the Republic, they do not seem to have an axe to grind against the petitioner, intercepted at a public place during routine search. Contraband, considerable in quantity, cannot be possibly foisted to fabricate a fake charge, that too, without any apparent reason; while furnishing evidence, both the witnesses remained throughout consistent and confidence inspiring”.

15. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Ali Hassan (supra), the acquittal of the accused was recorded mainly for the reason that there were material contradictions in evidence of witnesses with regard to preparation of mashirnama. In the instant case, no contradiction between evidence of witnesses with regard to preparation of mashirnama is pointed out. In case of Miandad (supra), the main reason for recording acquittal of the accused was dispute with regard to number of samples sent and received by Chemical Examiner. In the instant case, there is no such dispute.

16. In view of facts and reasons discussed above, the impugned judgment is not calling for any interference by this Court, by way of instant criminal jail appeal and it is dismissed accordingly.

JUDGE