ORDER SHEET

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No.D-56 of 2017.

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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.

07.12.2021

Mr. Syed Jaffar Ali Shah, Advocate for the appellant.

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

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IRSHAD ALI SHAH, J;- It is case of the prosecution that the appellant was found in possession/transporting through his Car 20 K.Gs and 200 grams of Opium, for that he was booked and reported upon by the police and after due trial, for the said offence, was convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of rupees one million and in default whereof to undergo simple imprisonment for six months, with benefit of Section 382-B Cr.PC, by learned Sessions/Special Judge (CNS) Shikarpur, vide judgment dated 27.10.2017, which is impugned by the appellant before this Court by preferring the instant criminal appeal from jail.

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; there is no independent witness to the incident; the author of the FIR and the person who took the Narcotics Substance to Chemical Examiner have not been examined by the prosecution; the evidence of the complainant and PW/Mashir with regard to receipt of spy information is contradictory; the report of Chemical Examiner has not been issued in accordance with law; therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contention, he relied upon cases of Ali Akbar Vs. The State (2020 YLR-503) 2). Mir Shahabuddin Shah alias Mir Shah Vs. The State (2020 YLR-1338) and 3). Ikramullah and others Vs. The State (2015 SCMR-1002).

3. Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal jail appeal by contending that the prosecution has been able to prove its case against the appellant beyond the shadow of doubt. In support of his contention, 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. It is settled by now that if the case of transportation and/or possession of “Narcotics Substance” is proved, then 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 such like case, the prosecution has only to show by evidence that the accused had dealt with the “Narcotic Substance” or has physical possession over it, and/or is directly concerned with it; then the logical presumption would be that he has committed such offence until and unless 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, it has inter-alia been stated by complainant ASI Shahzado Khan and PW/Mashir HC Razik Dino that on the date of incident, they with rest of the police personnel, when were conducting patrol, were intimated by spy that a white colour Car with its driver is coming from Kandhkot to Shikarpur containing Opium. On such information, they started checking, during course whereof, they found the pointed Car coming, it was stopped; the appellant on inquiry disclosed his name to be Ghulam Rasool and on search from Digi of his Car, was taken out a sack containing in all 51 packets of Opium, which the appellant was going to deliver to someone else at Khairpur. The packets of the Opium on being weighed came out to be 20 K.Gs and 200 grams; those were sealed with preparation of a mashirnama. The appellant with the recovery so made from him then was taken to P.S, New Foujdari Shikarpur, there he was booked in the present case formally and after usual investigation conducted by Investigating Officer SIP Tahir Muhammad, was challaned. Investigating Officer SIP Tahir Muhammad has supported the complainant and PW/Mashir Razik Dino in their version. All of them have stood at their version on all material aspects with regard to recovery of Opium from the appellant in a fashion alleged by the prosecution; therefore, they could not be disbelieved only for the reason that they are police officials and there is no independent witness to the incident and there was contradiction with regard to the manner whereby they received spy information. Such contradiction indeed was immaterial and irrelevant to the case in the circumstances. They apparently were having no enmity with the appellant to have involved him in this case falsely by foisting such huge quantity of Narcotics Substance upon him. The FIR of the incident was recorded by WHC of P.S New Foujdari, on the verbatim of the complainant, who has fully supported the contents of FIR, therefore, non-examination of the official who simply recorded FIR on the verbatim of the complainant could hardly be said to be fatal to the case of prosecution. If the driving license has not been recovered from the appellant then this fact could not be enough to conclude that the appellant was not capable to drive a vehicle. The driving license is a legal requirement, while driving a vehicle is an art, which could be known by anyone. No allegation of tampering with the Narcotics Substance has been leveled by the appellant at trial; therefore, the examination of the person who took the Narcotics Substance to the Chemical Examiner 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; therefore, there appears no reason to disbelieve or doubt such report at this stage. The owner of the vehicle of course has not been joined as accused by name in this case but this fact too is not enough to conclude that the involvement of the appellant in this case is doubtful. The appellant has not examined himself on oath to disprove the allegation of the prosecution against him for no obvious reason. DW Qadan was having a reason to support the appellant being his friend; he even otherwise, is appearing to be stock witness of the appellant. In that situation, the plea of innocence, which the appellant has taken, was rightly ignored by learned trial Court. 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 & 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 Ali Akbar (supra), there were material contradictions between the evidence of complainant and his witnesses. In the instant case, there is no material contradiction between the evidence of the complainant and his witness. In case of Mir Shahabuddin Shah alias Mir Shah (supra), the main reason for acquittal of the accused was that in report of Chemical Examiner, the date of sending the property was found blank; in that context, it was held that the examination of person, who took the Narcotics Substance to the Chemical Examiner was necessary. In the instant case, the report of Chemical Examiner contains the date when the Narcotics Substance was sent to the Chemical Examiner and there is no allegation of tampering with the Narcotics Substance. In case of Ikramullah and others (supra), the Investigating Officer of the case was not able to disclose the name of police official who took the Narcotics Substance to the Chemical Examiner. In that context, it was held by the Honourable Apex Court that the safe transmission of the Narcotics Substance to the Chemical Examiner is not proved. In the instant matter, the Investigating Officer has disclosed the name of police official who took the Narcotics Substance to the Chemical Examiner and there is no allegation of tampering to it.

12. In view of facts and reasons discussed above, it could be concluded safely that no mis/non reading of evidence is noticed on the part of learned trial Court, which may justify making interference with the impugned judgment by this Court, by way of instant criminal jail appeal; consequently it is dismissed.

JUDGE