IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR.
Crl. Jail Appeal No.
D – 103 of 2018
Before;
Mr. Justice
Zafar Ahmed Rajput,
Mr. Justice Irshad
Ali Shah.
Appellant: Deen
Muhammad alias Deeno son of Noor Muhammad alias Nooro bycaste Mirani
(Now
confined in Central Jail Khairpur)
Through Mr. Arif Ali Abbasi,
Advocate.
The State: Through Mr.
Zulfiquar Ali Jatoi,
Additional Prosecutor General, Sindh.
Date of hearing: 09-02-2023.
Date of decision: 09-02-2023.
JUDGMENT
IRSHAD ALI SHAH, J. It
is the case of the prosecution that on arrest from the appellant was secured 15
KG of charas by Police party of PS Rohri, for that he
was booked and reported upon. On conclusion of trial, he was convicted u/s 9
(C) of CNS Act, 1997 and sentenced to undergo Rigorous Imprisonment for life
and to pay fine of Rs. 100,000/- (One lac) and in default whereof, to undergo Simple
Imprisonment for 01 year with benefit of section 382-B Cr.P.C
by learned Sessions Judge/ Special Judge (CNS), Sukkur vide judgment dated 04-09-2018,
which is impugned by the appellant before this Court by way of instant Crl. Jail 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 at the instance of his rivals;
there is no independent witness to the incident; the case property has been
subject to Chemical Examination with the delay of about 09 days and evidence of
the PWs being doubtful in its character has been believed by learned trial
Court without assigning cogent reasons. By contending so, he sought for
acquittal of the appellant by extending him benefit of doubt. In support of his
contention he has relied upon cases of Mst. Sakina Ramzan Vs. The State (2021 SCMR 451) and Kamran Shah and another Vs. The State and others (2019 SCMR 1217).
3. Learned
Additional P.G for the State has sought for dismissal of the instant Crl. Jail 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. In support of his contention, he has relied
upon the case 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
is stated by complainant SIP Aijaz Ali that on 19-07-2016 he with his staff was
conducting patrol when reached at Kandhra Octroi Post there he came to know through spy information
that a person is sitting for selling charas at Bandar Wall adjacent to
abandoned Raja Patrol Pump at Old National Highway. On such information he with
his staff went at the pointed place, there found the appellant sitting by the
side of sack, who after seeing the police party jumped from the wall and fell
down. He was apprehended, the sack which he was having was secured, it was
found containing 15 slabs of charas, each one was weighed to be 1000 grams,
total 15000 grams, from each slab, was taken 100 grams of charas for Chemical Examination,
such memo was prepared, the appellant with the recovery so made was taken to PS
Rohri, there he was booked in the present case
formally and further investigation was conducted by I.O/Inspector Jahangir.
Evidence of the complainant is taking support from evidence of PW/mashir ASI Muhammad Murad. It was
stated by I.O/ Inspector Jahangir that on investigation he recorded 161 Cr.P.C statements of the PWs and then dispatched the charas
to Chemical Examiner. In order to prove the safe transmission of samples of
charas to Chemical Examiner, PW/PC Ali Nawaz was examined by the prosecution.
The complainant and his witnesses have stood by their version on all material
points with regard to the arrest of the appellant and recovery of Charas from him,
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 at the
instance of his rivals. No doubt the samples of the charas have been dispatched
to the Chemical Examiner with the delay of about 09 days, but such delay is not
found to be fatal to the case of prosecution for the reason that no allegation
of tempering with such sample of charas has been same made by the appellant at
trial. The appellant during course of his examination u/s 342 Cr.P.C denied the prosecution’s allegation by pleading
innocence by stating that there exists old enmity between Mirani’s
and Lakhan’s tribes, he being Mirani
was apprehended by Lakhan tribe persons, they
maltreated him and then got him involved in this case falsely through police.
On being asked, whether the appellant has ever been accused, witness or
complainant in any of the case, which is lodged by Mirani’s
or Lakhan’s tribes people against each other, the
reply by learned counsel for the appellant was in negative. Not only this, the
appellant has failed to examine him on oath in disproof of the prosecution’s
allegation against him or anyone else in his defence
to prove his innocence. In that situation
plea of innocence taken by the appellant for his involvement in this case at
the instance of Lakhan tribe people deserves to be
ignored as an afterthought. The prosecution obviously has been able to prove
its case against the appellant beyond shadow of doubt with remote chance of
foistation of Charas upon him by leading trustworthy and cogent evidence, which
is strongly supported in shape of recovery of charas from the appellant.
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 case of Mst. Sakina Ramzan (supra) the case chain of custody was
found to have been compromised. In the instant case chain of custody of the
Charas and transmission of the samples whereof has not been found to have been
compromised. In case of Kamran Shah (Supra) the constable who
has taken the sample to the Chemical Examiner was not examined by the
prosecution. In the instant case, PC Ali Nawaz, who has taken the samples of
charas to Chemical Examiner has been examined.
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 Crl. Jail Appeal, it is dismissed accordingly.
J U D G E
J U D G E
Nasim/P.A