JUDGMENT SHEET.

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Special Crl. Appeal No. D – 145 of 2019

Before;

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Irshad Ali Shah

Appellants: 1. Choudhary Muhammad Ashraf s/o Khuda

Bux bycaste Gill.

2. Altaf Hussain son of Khadim Hussain @

Ghulam Hussain bycaste Dodi.

(Now both confined in Central Prison Khairpur)

Through Mr. Moazam Ali Lashari, advocate.

The State: Through Mr. Syed Sardar Ali Shah, Additional Prosecutor General.

Date of hearing: 24-01-2023.

Date of decision: 26-01-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is the case of the prosecution that the appellants were found transporting 2000 kilograms of charas through their Trailer/Container for that they were booked and reported upon by police party of PS Excise Circle, Khairpur. On conclusion of trial, they were convicted under section 9 (C) of CNS Act, 1997 and sentenced to undergo Imprisonment for life and to pay fine of Rs. 500,000/- each and in default whereof to undergo Simple Imprisonment for 03 months with benefit of Section 382-B Cr.P.C by learned Ist Additional Sessions Judge/MCTC-I/ Special Judge (CNS), Khairpur vide judgment dated 17-06-2019, which is impugned by the appellants before this Court by preferring the instant Special Crl. Appeal.

2. It is contended by learned counsel for the appellants that appellants being innocent have been involved in this case falsely by the Excise police by substituting them with the real culprits of the incident and the evidence of the PWs being doubtful in its character has been believed by learned trial Court without assigning cogent reasons; however it was further contended by him that he would not press the disposal of instant Special Crl. Appeal on merits provided the sentence awarded to the appellants is reduced to one which they have already undergone, who even otherwise being aged person(s) including remission have served out more than 18 years of the sentence.

3. Learned Additional P.G for the State has sought for dismissal of the instant Special Crl. Appeal by supporting the impugned judgment by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt and they have already been dealt leniently by learned trial Court by awarding them lesser punishment.

4. Heard arguments and perused the record.

5. It is stated by complainant Inspector Ghulam Shabbir that on 19-07-2014 he was intimated by telephonic message that a Trailer/Container containing Narcotic Substance is coming from Punjab side and would go to Karachi through Khairpur by night; he shared such information with his staff and then with them went at the pointed place, there at about 5:15 am, he was again intimated that the Trailer/Container is coming on the same road; it was found coming; it was signaled to stop; it was not stopped by its driver; he with his Excise police party followed it and it was made to stop tactfully at Baberloi bypass, adjacent to Suzuki showroom; therein were found sitting two drivers; the first driver disclosed his name to be Choudhry Muhammad Ashraf while other disclosed his name to be Altaf Hussain; on search from them were secured Rs. 3500/- and Rs. 1500/- respectively, beside their driving licenses and registration book in name of Muhammad Shafi; they were asked to open the back side door of the Trailer/Container, which they opened and therein were found secret shelf, it was opened, therein were found two different type of pockets; those were containing 2000 packets of charas; each one was weighed to be one kilogram, total 2000 kilograms; those were sealed at the spot under memo; then the appellants with the recovery so made from them then were taken to Excise PS Khairpur, there they were booked accordingly; it was further stated by the complainant that on investigation, he recorded 161 Cr.P.C statements of the PWs and then dispatched the property to the Chemical Examiner; it was returned by him for the reason that such huge property could not be kept by him, in safe custody; therefore, from each packet of charas, was taken out 20 grams of charas, those then were sent to the Chemical Examiner, who certified them to be charas by issuing such report. Evidence of the complainant takes support from evidence of PW/mashir ED Abdul Jabbar. They have stood by their version on all material points with regard to the arrest of the appellants and recovery of Narcotic Substance from them, which they were found transporting/possessing through their Trailer/Container being strong corroboratory piece of evidence, despite lengthy cross examination; as such, they could not be disbelieved only for the reason that they are police officials; they indeed were having no enmity or ill will with the appellants to have involved them in this case falsely by substituting them with real culprits of the incident. The substitution of the real culprits with the innocent one; even otherwise is rare phenomenon. The prosecution obviously has been able to prove its case against the appellants beyond shadow of doubt with remote chance of foistation of Narcotics Substance or Trailer/Container upon them, which also takes support from their intention, when they asked for disposal of their appeal other than merits by reducing the sentence, which they have already undergone.

6. The offence which the appellant have committed is entailing the punishment of death and/or life with fine; by awarding the imprisonment for life with fine, the appellants have already been dealt with leniently by learned trial Court; therefore legally no further leniency could be extended to them on point of age, by making departure to the prescribed punishment, which even otherwise is beyond competence of this Court.

7. In case of Zafar Vs. The State (2008 SCMR-1254), it has been held by the Honourable Apex Court that;

“---S. 9(c)---Evidence of police officials---Competence---Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees”.

8. In case of Muhammad Noor and others Vs. The State
(2010 SCMR-927), it has been held by the Honourable 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 cases of Inder Sain v. State of Punajb (AIR 1973 SC-2309)”

9. In case of Kashif Amir Vs. The State (PLD 2010 SC-1052), it has been held by the Honourable Court that;

“---S. 9(c)---Transportation of narcotics---Driver of the vehicle to be responsible---Person on driving seat of the vehicle shall be held responsible for transportation of the narcotics, having knowledge of the same, as no condition or qualification has been made in S.9(6) of the Control of Narcotics Substances Act, 1997, that the possession should be an exclusive one and can be joint one with two or more persons---When a person is driving the vehicle, he is incharge of the same and it would be under his control and possession, hence whatever articles lying in it would be under his control and possession”.

10. In view of the facts and reasons discussed above, it is concluded safely that no case for interference with the impugned judgment is made out by this Court, by way of instant Special Crl. Appeal, it is dismissed accordingly.

J U D G E

Nasim/P.A