IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Criminal Appeal No. D–26 of 2020
Before:
Mr. Justice Irshad Ali Shah,
Mr. Justice Zulfiqar Ali Sangi.
Appellant: Allah Dino son of Gul Hasssan Rind
Through Mr. Habibullah Ghouri, Advocate.
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 21-03-2023.
Date of decision: 21-03-2023.
JUDGMENT
IRSHAD ALI SHAH, J. The facts in brief necessary for disposal of instant Criminal Appeal are that the appellant was found transporting/possessing through his Dotson Pickup 160 K.Gs of Charas, for that he was booked and reported upon by police. The appellant denied the charge and prosecution to prove it examined, in all three witnesses and then closed its side. The appellant in his statement recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that he came at Jacobabad from Balochistan with Rs.70,000/- to make purchase of dowry articles for marriage of her sister; on account of his refusal to pay such amount, he was involved in this case falsely by the police by releasing the real culprit of the incident; he did not examine himself on oath or anyone in his defence. On conclusion of trial, he was convicted Under Section 9 (c) of CNS Act, 1997 and sentenced to undergo imprisonment for life and to pay fine of Rs.100,000/- and in default whereof, to undergo simple imprisonment for one year with benefit of Section 382-B Cr.PC, by learned 1st Additional Sessions Judge/MCTC, Jacobabad, vide judgment dated 12.08.2020, which he has impugned before this Court by preferring the instant Criminal Appeal.
2. It is contended by learned counsel for the appellant that appellant being innocent has been involved in this case falsely by the police by substituting him with the real culprit; there is no independent witness to the incident; the Charas has been subjected to Chemical Examination with the delay of about 04 days; the ownership of the vehicle has not been ascertained and evidence of the PWs being inconsistent with regard to arrest of the appellant and availability of independent person has been believed by learned trial Court without lawful justification, therefore, he is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon case of Javed Iqbal V. The State (2023 SCMR 139).
3. Learned Additional P.G for the State has sought for dismissal of the instant Criminal Appeal by supporting the impugned judgment by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt which is supported in shape of recovery of huge quantity of Charas from him. In support of his contentions, he relied upon cases of Liaquat Ali and others Vs. The State (2022 SCMR 1097) and unreported order dated 28-10-2021 passed by Hon’ble Apex Court in Crl. Appeal No. 46-P/2014 Re. Ajab Khan Vs. The State.
4. Heard arguments and perused the record.
5. It was inter-alia stated by Complainant SIP Shah Muhammad and PW/Mashir ASI Talib Hussain that on the date of incident when they with rest of police personnel were conducting patrol within jurisdiction of P.S Mouladad, they were intimated by spy that a Dotson pickup bearing registration No.KU-3214 is going through inspection path leading from Garhi Khairo to Begari; on such information, they went at the pointed place, found the said Dotson pickup coming, the person sitting therein was apprehended, on enquiry he disclosed his name to be Allah Dino; on search from front seat of his Dotson pickup were secured two sacks, each one was found containing 30 packets of Charas, each one was found containing two slabs and from its secrete cavity were secured 100 packets of Charas; each packet was found containing two slabs, each packet was weighed to be 01 K.G, total 160 K.Gs; from each sack was taken out 10 slabs weighing to be 05 K.Gs, total 10 K.Gs and from 100 packets of Charas were taken out 20 slabs weighing to be 10 K.Gs for the purpose of chemical examination; such memo was prepared at the spot; the appellant with the recovery so made from him then was taken to P.S Mouladad, there he was booked in the present case formally. It was further stated by the complainant that on investigation, he recorded 161 Cr.PC statements of the PWs, dispatched the Charas to Chemical Examiner and after usual investigation submitted charge sheet against the appellant before the Court having jurisdiction. In order to prove safe transmission of Charas to Chemical Examiner, PW/ASI Muhammad Saifal was examined. All of them have stood by their version on all material points with regard to the arrest of the appellant and recovery of Charas which he was found transporting through his vehicle, despite lengthy cross examination; 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 appellant to have involved him in this case falsely by substituting him with the real culprit, which even otherwise is rare phenomenon. Inconsistency in their evidence with regard to arrest of the appellant and availability of independent person at the place of incident etc. is not enough to discard their evidence; such inconsistency was bound to be in their evidence for the reason that they were examined with considerable delay after registration of the case; it even otherwise suggests that they have not been tutored. The independent person are oftenly found to be reluctant to extend help to the police in case like present one because of possible retaliation at the hands of accused involved therein being drug peddlers. No doubt, the Charas has been dispatched to the Chemical Examiner with delay of about 04 days but such delay is not appearing to be fatal to the case of prosecution as no allegation of its tempering has been leveled by the appellant at trial. The Charas after its recovery admittedly was kept in Malkhana and to prove such fact, the prosecution has been able to bring on record the relevant entry of property register which is not alleged to be fake or otherwise. It is true that the ownership of the vehicle involved in commission of the incident has not been ascertained but this fact too is not enough to conclude that the accused is innocent by disbelieving the recovery of huge quantity of Charas from him. The appellant has failed to examine him on oath in disproof of the prosecution’s allegation or anyone else in his defence to prove his innocence. In that situation plea of innocence on the part of the appellant deserves to be ignored as an afterthought. The prosecution obviously has been able to prove its case against the appellant beyond shadow of doubt, of course to the extent of Charas which has been subjected to chemical examination which is 20 K.Gs.
6. 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”.
7. 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)”
8. 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”.
9. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstance. In that case, the narcotic substance, was recovered from digi of Car, it was kept there as luggage by someone else. In the instant case, the appellant was found to be transporting much of the Charas by keeping the same in secrete cavity of his vehicle.
10. In view of facts and reasons discussed above, it is concluded safely that no illegality, misreading or non reading of the evidence is found, which may justify this Court to make interference with the impugned judgment. Consequently, the instant Criminal Appeal fails and is dismissed accordingly.
JUDGE
JUDGE
.