IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Jail Appeal No. D –57 of 2018

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellant: Zahid Ali son of Arbab by caste Jamali.

Through Mr.Riaz Hussain Khoso, Advocate.

The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing: 26-04-2023.

Date of decision: 26-04-2023.

JUDGMENT

IRSHAD ALI SHAH, J;- The facts in brief necessary for disposal of instant Criminal Jail Appeal are that the appellant was found possessing/transporting through his Car 30 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 Complainant Inspector Ahmed Nawaz Jakhrani and PW/Mashir HC Baran Khan 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 was apprehended by the police from Passenger Coach and then was involved in this case falsely by foisting upon him a Charas on account of his refusal to pay bribe to them; he did not examine anyone in his defence or himself on oath. On conclusion of trial, he was convicted U/S.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 Sessions/Special Judge(CNS), Kashmore @ Kandhkot, vide judgment dated 04.10.2018, which he has impugned before this Court by preferring the instant Criminal 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 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 Car has not been ascertained 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 contentions, he relied upon cases of Kamran Shah and others Vs. The State and others (2019 SCMR-1217) and Nazeer and another Vs. The State ( 2014 PCr.LJ-1358).

3. Learned Addl.P.G for the State has sought for dismissal of the instant Criminal 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 contentions, he relied upon case of Liaquat Ali and others Vs. The State (2022 SCMR 1097).

4. Heard arguments and perused the record.

5. It was inter-alia stated by Complainant Inspector Ahmed Nawaz Jakhrani that on the date of incident, he with his staff when was conducting patrol within jurisdiction of P.S Buxapur, came to know through spy information that the Charas is being transported through a Car; on such information, he with his staff went at the pointed place, there was found coming a pointed Car, it was stopped, therein was found sitting the appellant, on search from its back seat was found lying/kept 30 packets of Charas, those were taken out and weighed to be 30 K.Gs, from each packet was taken out half K.G of Charas as sample for chemical examination; those were sealed; such memo was prepared at the spot; the appellant with the recovery so made from him then was taken to P.S Buxapur and was booked accordingly. It was further stated by him that on investigation, he recorded 161 Cr.PC statements of the PWs, dispatched the Charas to Chemical Examiner and after usual investigation submitted challan of the case before the Court having jurisdiction. The evidence of the complainant takes support from evidence of PW/Mashir HC Baran Khan. Both of them have stood by their version on all material points though they have been subjected to lengthy cross examination by learned counsel for the appellant; they could not be disbelieved only for the reason that they are police officials; they apparently were having no enmity or ill-will to have involved the appellant in this case falsely by substituting him with the real culprit only for the reason that he failed to pay them bribe. The substitution of real culprit with the innocent one even otherwise is rare phenomenon. The independent persons are usually found unwilling to extend help to the police in case like present one because of possible retaliation at the hands of accused being drug peddlers. No doubt, the Charas has been dispatched to the Chemical Examiner with delay of about 04 days to its recovery but such delay is not appearing to be fatal to the case of prosecution as no allegation of its having been tempered has been leveled by the appellant at trial. The appellant could not be declared to be innocent only for the reason that the ownership of the Car involved in commission of the incident has not been ascertained ignoring the recovery of huge quantity of the Charas from the appellant. The appellant has failed to examine himself on oath in disproof of the prosecution’s allegation or anyone else in his defence to prove his innocence, therefore, his simple plea of innocence deserves to be ignored as an afterthought. The prosecution obviously has been able to prove its case against the appellant beyond shadow of doubt.

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 Kamran Shah and others (supra), the main reason for acquittal of the accused was that they were found to be passengers in the vehicle which at the relevant time was being driven by co-convict. In the instant case, it was a Car which was being driven by the appellant alone at the relevant time. In case of Nazeer and another (supra), the main reason for acquittal of the accused was that the recovered Charas was weighed from different places. In the instant case, the recovered Charas was not weighed from different places.

10. In view of above, it is concluded safely that no illegality or misreading/non-reading of the evidence is found on part of learned trial Court, which may justify this Court to make interference with the impugned judgment. Consequently, the instant Criminal Jail Appeal is dismissed accordingly.

JUDGE