JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal No.D-45 of 2018.

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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.

08.12.2021

                        Mr. Farhat Ali Bugti, Advocate for the appellant.

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

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IRSHAD ALI SHAH, J;- The appellant allegedly was found to be in possession/transporting through his “Mini Truck” 75 K.Gs of Charas in shape of 150 slabs, duly packed in sacks, for that he was booked accordingly and after due trial, was convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of rupees One Lac and in default whereof to undergo simple imprisonment for six months, with benefit of Section 382(b) Cr.PC, by learned Sessions/Special Judge (CNSA) Jacobabad, vide judgment dated 04.06.2018, which has been impugned by him before this Court by of instant criminal jail appeal.

2.        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 of the incident; there is no independent witness to the incident; the ownership of the Mini Truck has not been ascertained by the prosecution; there is no recovery of driving license and the prosecution has not been able to prove safe custody/transmission of the Charas to the Chemical Examiner; the report of Chemical Examiner has not been issued as per requirement of law. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contention, he relied upon cases of Mohsin Vs. The State (2017 MLD-674), 2). Abdul Ghani and others Vs. The State and others (2019 SCMR-608), and 3). Mst.Sakina Ramzan Vs. The State(2021 SCMR-451).

3.        It is contended by learned Addl.P.G for the State that the appellant is neither innocent nor has been involved in this case falsely and the prosecution has been able to prove its case against him beyond shadow of doubt. By contending so, he sought for dismissal of the instant criminal jail appeal. 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).

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

5.        When the case of transportation and/or possession of “Narcotics Substance” is proved, then it is settled by now that the technicalities of procedural nature are to be ignored.

6.        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.”

7.        In case of Narcotics Substance, the prosecution has only to show of course by evidence that the accused had dealt with the “Narcotic Substance” or has physical possession over it, and/or is directly connected with it; then the presumption logically would be that he has committed such offence until he proves otherwise.

8.        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)”.

9.        In present case, the prosecution has examined Complainant/I.O A.E.T.O Javed Akhtar and PW/Mashir E.D Rafique Ahmed, they have inter-alia stated that on the date of incident, they with rest of the Excise Police personnel, were performing their duty at Excise Check Post adjacent to Agricultural College, Shikarpur Road Jacobabad, there they found coming a “Hino Mini Truck”, bearing Registration No.TKQ-625, it was stopped; the appellant on inquiry disclosed his name to be Abdul Ghafoor and on search from him were secured Rs.500/-, on search from “Mini Truck” from its upper portion were secured two sacks containing 80 and 70 slabs of Charas respectively, total 150 slabs, each slab was weighed to 500 grams making total of 75 K.Gs; from each slab was taken out 250 grams of Charas for the chemical examination, total 37 ½ K.Gs. The Charas so secured and separated then was sealed with preparation of mashirnama. The appellant with the recovery so made from him then was taken to Excise P.S, Jacobabad, there he was booked in the present case formally and after usual investigation was challaned. They despite lengthy cross examination have stood at their version on all material points with regard to recovery of Charas from the appellant; therefore, they could not be disbelieved only for the reason that they are Excise Police officials and there is no independent witness to the incident. Apparently, they were having no enmity with the appellant to have involved him in this case falsely by making foistation of such huge quantity of Narcotics Substance upon him. Of course, there is no recovery of driving license from the appellant but such fact could not be made enough to conclude that the appellant was having no skill to drive a vehicle. It is an art. The Narcotics Substance has been taken to Chemical Examiner by E.D Rafique Ahmed; he has been examined and no suggestion is made to him with regard to tampering with the Narcotics Substance; therefore, the examination of Incharge Malkhana was hardly required in the circumstances. No suggestion was made by the appellant to any of the witness during course of their examination that the report of Chemical Examiner is false or managed by them; therefore, there appears no reason to disbelieve or doubt such report at this stage. The ownership of “Mini Truck” of course has not been determined by the prosecution but for such omission it would be hard to conclude that the involvement of the appellant in this case is false or doubtful. The appellant has not examined himself on oath or anyone else in his defence to prove that he actually has been substituted with real culprit of the incident. Such plea on his plea therefore deserved to be ignored as an after-thought. The substitution of real culprit with innocent in case like present one even otherwise is a rare phenomenon. In these circumstances, the learned trial Court has rightly concluded that the prosecution has been able to prove its case against the appellant beyond shadow of reasonable doubt.

10.      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”.

11.      The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Mohsin (supra), the main reason for acquittal of the appellant was that; one of the co-accused was already acquitted by learned trial Court, while the other co-accused was still absconding and the prosecution was not able to prove the possession of the appellant over the Car containing Narcotics Substance beyond doubt. In the instant case, there is no acquittal of the co-accused. In case of Abdul Ghani and others (supra), the prosecution was not able to prove safe custody and transmission of the Narcotics Substance, on account of its failure to examine Incharge of Malkhana, and the person who took the Narcotics Substance to the Chemical Examiner. In the instant case, E.D Rafique Ahmed has been examined by the prosecution and no suggestion is made to him by the appellant at trial that he has tampered with the Narcotics Substance. In case of Mst.Sakina Ramzan (supra), the main reason for acquittal of the accused was that the chain of the custody of the Narcotics Substance was found to have been compromised. In the instant case, no such compromise has been noticed.

12.      Consequent upon above discussion, it is concluded that no case for making interference with the impugned judgment is made out, by way of instant criminal jail appeal; it is dismissed.

JUDGE

JUDGE             .