IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Special Crl. Jail Appeal No.D-159 OF 2019
Present:
Mr. Yousuf Ali Sayeed, J
Mr. Zulfiqar Ali Sangi, J
Appellant: Muhammad
Asif Yousif son of Muhammad Yousif through Mr. Nisar Ahmed Bhambhro, Advocate.
The State: Through
Mr.
Mohsin Ali Khan Pathan, Special Prosecutor ANF.
Date of hearing : 14.11.2023.
Date of decision : 21.12.2023.
J U D G M E N T
Zulfiqar
Ali Sangi, J.– The appellant named above has
filed instant Crl. Jail Appeal through Senior Superintendent Central Prison and
Correctional Facility Sukkur, whereby he has impugned the judgment dated 02.08.2019,
passed by Additional Sessions Judge-III (MCTC-II) Sukkur, in Special Case No.114/2015
(Re. The State vs. Muhammad Asif Yousif and another) arising out of Crime No. 11/2015
offence u/s 9 (c) of CNS Act, 1997 registered at PS ANF Sukkur, whereby he was
convicted and sentenced to suffer imprisonment for life and to pay fine of
Rs.100,000/- and in case of default in payment of fine he shall further suffer
S.I for one year with benefit of 382-B Cr.P.C, hence he preferred the instant
appeal from the jail.
2.
Precisely, the facts of the case are
that on 28.06.2015, at about 1600 hours, near Government Physical Education
College Sukkur, a police party of ANF Sukkur, headed by SIP ANF Muhammad Asif
Raza secured 300 KGs of Chars in shape of 300 packets, each packet containing
01 KG from double cabin vehicle bearing Registration No. CS-8858, which was
being driven by accused Muhammad Asif Yousif. On bodily search of accused cash
of Rs. 550/- Mobile phone along with some other articles were also recovered in
presence of mashirs HC Ayaz Ahmed and PC Shoukat Ali. After taking samples for
Chemical Analysis, the recovered Chars was sealed at the spot and such
mashirnama of arrest and recovery was prepared with the signatures of above
named mashirs. Then,
accused and case property were brought at Police station where FIR against the
present appellant and co-accused Afzal Khan was registered on behalf of the State.
3. During investigation 161 Cr.P.C statements of the PWs were recorded. The
samples were sent to the Chemical Examiner for Report through HC Ayaz Ahmed.
Positive report of the Chemical Examiner was received. On the conclusion of
usual investigation, challan was submitted against the accused u/s 9 (c) of CNS
Act, 1997. After completing legal formalities, the trial Court framed charge
against accused to which they pleaded not guilty and claimed to be tried.
4. At the trial, prosecution
examined PW-1 complainant/IO Muhammad Asim Raza, PW-2 SIP Noor Muhammad, PW-3
mashir/eye witness PC Shoukat Ali, PW-4 HC Ayaz Ahmed. They
have produced certain documents and items in support of their evidence. Thereafter, the side of prosecution was
closed. The appellant and co-accused were examined under section 342 Cr.PC,
wherein they denied the allegations leveled against them and pleaded their innocence.
5. After hearing the parties and assessment
of the evidence against the accused, trial Court convicted and sentenced the appellant/accused
as stated above and the co-accused Afzal Khan was acquitted. The appellant
Muhammad Asif Yousif against the said conviction preferred instant criminal
jail appeal.
6. Learned
counsel for appellant/accused contended that the appellant is innocent and has
falsely been implicated in this case; complainant and IO is the same person which
points out to his interest in the case and mala fide on his part to involve
appellant; that prosecution has not examined all the witness who were allegedly
part of the team with the complainant on the day of incident; that no private
person was associated as witness though the place of incident is situated at
main road leading from Sukkur-Shikarpur; that nowhere
it is mentioned either in the memo of arrest and recovery or in FIR about the
description of the chars; that prosecution failed to produced evidence of two marginal
witnesses who signed the mashirnama and only one mashir was examined hence
violated Article 17 (2) and 79 of the
Qanoon-e-Shahadat, order, 1984; that the evidence adduced by the
prosecution at the trial is not properly assessed and evaluated by the trial
Court which is insufficient to warrant conviction against the
appellant/accused; that the trial Court has failed to appreciate the factual as
well as legal aspects of the case while convicting the appellant/accused; that there are material contradictions in the
evidence of prosecution witnesses with regard to recovery, sealing and safe
custody, but those have not been taken into
consideration by the learned trial Court while passing impugned judgment; that
the judgment passed by the trial Court is preserve and liable to be set-aside.
Lastly, prayed that the appellant/accused may be acquitted by extending him the
benefit of doubt. In support of his contention, he relied on the cases of Mst.
Sakina Ramzan vs. The state (2021 SCMR 451), Zubair Khan vs. The State (2021
SCMR 492), Gulzar vs. The state (2021 SCMR 380).
7. Conversely, learned SPP for ANF opposed
the aforementioned appeal on the ground that prosecution has successfully
proved its case against the appellant/accused beyond a reasonable doubt and all
the witnesses including complainant/seizing officer have fully implicated the
appellant/accused in their evidence recorded by the trial Court; that all the
necessary documents including the entries of station diary, the memo of
recovery, FIR, Chemical Examiner report etc have been produced; that there
appears no malafide or ill-will on the
part of ANF officials to falsely implicate innocent person; that during the
cross-examination counsel had not shaking their evidence; that there are no
major contradictions in the evidence of prosecution witnesses. Lastly, he
submitted that appellant/accused was rightly convicted by the trial Court and
prayed that appeal of appellant/accused may be dismissed. In support of his contentions
he relied on the cases of Adnan Ahmed vs. P.O Sindh through Chief
Secretary to Government of Sindh and 8 others (PLD 2022 Sindh 42), Liquat Ali
and another vs. The State (2022 SCMR 1097), Zain Ali vs. The State (2023 SCMR
1669), and un-reported Judgment of this Court in Special Crl. Jail Appeal No.D-85
of 2018.
8. We have heard learned Counsel for the
appellant/accused, learned Prosecutor for ANF and have examined the record
carefully with their able assistance.
9. The evidence produced by the prosecution
was re-appraised and found that the prosecution to prove the case against the
appellant has examined two eyewitnesses in respect of the arrest and recovery
of contraband material from his possession. PW-1 Inspector/SHO Muhammad Asim
Raza, the complainant so also the investigating officer of the case, whereas,
PW-3 PC Shoukat Ali is the eyewitness and the mashir. Both the witnesses
deposed against the appellant in the same line and stated that on 28.06.2015 they
were available at PS ANF Sukkur. The informer provided information that a famed
drug peddler namely Muhammad Asif Yousif (appellant) would be bringing
narcotics in huge quantities by double cabin vehicle bearing No.CS-8858 for
delivery near Physical Education College. On receipt of such information a
raiding party was constituted comprising of the complainant, HC Ayaz Ahmed, PC
Shoukat Ali Qazi and other staff under the supervision of AD Mashooq Ali Brohi
proceeded under entry No.03 and arrived at the pointed place where saw one
vehicle parked outside of Physical Education College Sukkur and the same was
pointed out by the informer to be the same. They found one person sitting on
driver seat, who was arrested, who after some inquiry disclosed his name and identity
so also about the availability of chars in the vehicle. On refusal of private
persons HC Ayaz Ahmed and PC Shoukat were nominated as mashir, in their
presence appellant disclosed availability of chars in ten green bags at back
side of vehicle which were taken and checked and found that each bag containing
30 packets of chars, which were totally 300 in number. Each packet was weighed
found to be 1 kg total 300 kg and from each packet 10 grams were taken as samples.
Samples and remaining chars were sealed separately. Personal search was
conducted and recovered one CNIC, cash of Rs. 550/=, One Nokia phone alongwith
SIM, registration card of vehicle and miscellaneous pages. By preparing
mashirnama of arrest and recovery accused and the property brought at police
station and by completing documentation including FIR, the complainant started
investigation. As per complainant/investigation officer he recorded statements
of the witnesses, deposited the property in Malkhana for safe custody and on
the next day sent samples through PC Ayaz Ahmed for chemical examination. Investigation
officer also take certain efforts in respect of co-accused and the vehicle etc
and after receipt of report of chemical examiner challan was submitted. The
case property including recovered articles and the relevant documents were
exhibited in their evidence including the entry made in register 19 belongs to
Malkhana and they were cross-examined at length but we do not find any
substantial defect in their evidence to discard their testimony.
10. To prove the safe transmission of the samples
of recovered contraband from the police station to the chemical examiner the
prosecution examined PW-4 PC Ayaz Ahmed who in his evidence has stated that on
29.06.2015, he was posted at PS ANF Sukkur when I/C Malkhana handed over him
one sealed green plastic bag bearing seal of MAR containing sealed samples, Letter,
FIR No. 11/2015/PS/ANF Sukkur/786/2015 dated: 29.6.2015 and mashirnama. He took
the parcel in official vehicle with the guard and deposited the samples and the
documents in the office of chemical examiner at Rohri. During the
cross-examination he clarified MAR as Muhammad Asim Raza the complainant. On
perusal of his evidence, no major contradiction was found. His evidence when
scrutinized with the Chemical Examiner’s report it was found reliable,
trustworthy and confidence inspiring. As per the Chemical Examiner’s report,
the property reached at the lab on 29.06.2015 through PC Ayaz Ahmed. The descriptions
of the property as per the report were found to be the same which was sent.
Learned defence counsel has pointed out minor discrepancy in respect of
availability of Panee wrapped upon the samples and submits that it was not
mentioned in the mashirnama which in our view is not sufficient to discard the direct
evidence of two eye-witnesses whose evidence we found to be reliable, trustworthy
and of confidence inspiring. In the case in hand, the prosecution examined two
eye-witnesses and the person who brought the property to the lab for safe
transmission even otherwise if the prosecution failed to examine incharge of
the Malkhana and the person who took samples to the chemical lab and the
Chemical Examiner’s report supports that the property reached at the lab with
perfect seals as per the document then it is sufficient to hold that the
property was in safe custody and the same was safely transmitted. No question
was put from the complainant/investigation officer in respect of any tampering
with the samples during the cross-examination. The latest view of the Supreme
Court on this point in the case of Zain Ali vs. The State (2023 SCMR 1669),
is as under:-
“During the
course of arguments, learned counsel for the appellant had argued that one Suleman Haider, Constable, who deposited
the sample parcels in the office of Chemical Examiner was not produced in
evidence, therefore, the safe custody of the allegedly recovered narcotic and
its safe transmission is not established. However, this argument is of no help
to the appellant. A bare perusal of the record shows that a huge quantity of
563 kilograms charas and 1500 grams opium was recovered from the appellant on
25.03.2013. The Investigating Officer separated 83 kilograms of charas in two
separate parcels of 43/40 kilogram and sealed the same. The whole recovered
1500 grams opium was also separated and sealed in a parcel. All the three
sealed sample parcels were sent to the office of Chemical Examiner on the very
next day i.e. 26.03.2013. The report of the Chemical Examiner testifies this
fact that the three sealed parcels were received on the said date, which were
found to be charas and opium. It also came in evidence that the
whole recovered narcotics, except the parcels which were sent to the Chemical
Examiner, was produced in Court in sealed parcels during trial as a case
property. Although, Tahir Ahmed, Inspector/I.O. was cross-examined by the
defence at length but no question was put to him, which could suggest that
either the whole recovered narcotics was not produced in Court or the same was
not sealed in separate parcels as stated by him. Similarly, no question was put
to him, which could suggest that the recovered narcotics was planted on the
Criminal Appeal No. 208/2022. In this view of the matter, it can safely be said
that the safe chain of custody of the recovered narcotics was not compromised
at all.”
11. We have carefully examined the evidence of
the prosecution witnesses and found the same reliable, trustworthy and
confidence inspiring. The recovery of a huge quantity of 300 KG of charas was
affected from the possession of accused person and the same was kept in safe
custody and with shortest period it was sent for chemical examination. The
prosecution also proved the safe custody and its safe transmission by producing
the witnesses. All the chains from the recovery of the narcotics till sending
the same for chemical examination have been proven by the prosecution beyond a
reasonable doubt. The contention raised by the learned counsel for the appellant
that PW-1 Muhammad Asim Raza himself is the complainant and the investigation
officer of the case, therefore, his evidence cannot be relied upon and its
benefit must be given to the appellant has no force as there is no prohibition
in the law for the police officer to investigate the case lodged by him as has
been held by the Supreme Court of Pakistan in the case of Zafar vs. The State (2008 SCMR
1254), wherein it is held as follows:-
“11.
So far as the objection of the learned counsel for the applicant that the
Investigation Officer is the complainant and the witness of the occurrence and
recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v.
Bashir and others PLD 1997 SC 408, wherein it is observed that a Police Office
is not prohibited under the law to be complainant if he is a witness to the
commission of an offence and also to be an Investigating Officer,
so long as it does not in any way prejudice the accused person. Though the Investigation Officer and other
prosecution witnesses are employees of A.N.F., they had no animosity or rancor
against the appellant to plant such a huge quantity of narcotic material upon
him. The defence has not produced any such evidence to establish
animosity qua the prosecution witnesses. All the prosecution witnesses have
deposed in line to support the prosecution case. The witnesses have passed the
test of lengthy cross-examination but the defence failed to make any dent in
the prosecution story or to extract any material contradiction fatal to the
prosecution case. The prosecution has been successful to bring home the guilt
of the appellant to the hilt by placing ocular account, recovery of narcotic
material, the Chemical Examiner report G.1, Exh.P.3. The learned counsel for
appellant has not been able to point out any error of law in the impugned
judgment and the same is unexceptionable.
12. The contention of learned counsel for the
appellant that having prior information no private persons were associated as
witness/mashir in the recovery proceeding hence the provision of section 103
Cr. P.C was violated by the complainant and the evidence of police officials
cannot be relied upon while awarding the conviction in cases of capital
punishment also has no force as the reluctance of the general public to become
a witness in such cases has become a judicially recognized fact and there was
no way out but consider the statement of the official witnesses as no legal bar
or restriction has been imposed and even then there was no time to collect
independent witnesses. No direct enmity or ill will has been suggested by the
appellant against the complainant or any of the officials who participated in
recovery proceedings during cross-examination and therefore, in the circumstances
the police officials were good witnesses and could be relied upon if their
testimony remained un-shattered during the cross-examination. Even otherwise,
the provision of Section 25 of the CNS Act has provided the
exclusion of Section 103 Cr.P.C. during recovery proceedings. The Supreme Court
of Pakistan in the case of Salah-uddin v. The State (2010 SCMR 1962),
has held as under:-
“We are conscious of the fact that no private witness could be produced
but it must not lost sight of that reluctance of general public to become
witness in such like cases by now has become a judicially recognized fact and
there is no way out but to consider the statement of an official witness as no
legal bar or restriction whatsoever has been imposed in this regard. We are
fortified by the dictum laid down in Hayat Bibi v. Muhammad Khan (1976 SCMR
128), Yaqoob Shah v. The State (PLD 1976 SC 53), Muhammad Hanif v. State (2003
SCMR 1237). It is well settled by now that police officials are good witnesses
and can be relied upon if their testimony remained un shattered during cross
examination as has been held in case of Muhammad Naeem v. State (1992 SCMR
1617), Muhammad v. State (PLD 1981 SC 635). The contentions of Mr. Kamran
Murtaza, learned Advocate Supreme Court on behalf of petitioner qua violation
of provisions as enumerated in section 103, Cr.P.C. seems to be devoid of merit
when examined in the light of provisions as contained in section 25 of the Act
which provides exclusion of section 103, Cr.P.C.”
13. Another contention of learned counsel for
the appellants that only one attesting witness of the mashirnama of recovery of
Chars and arrest was produced by the prosecution and the prosecution was bound
to produce at least two witnesses as required by Article 17 (2) of the Qanun-e-Shahadat
Order, 1984, and the evidence of complainant being the author of the mashirnama
and being scriber is not a substitute for an attesting witness and his evidence
may have a supportive value, but was neither in line with the mandate of law
nor did it meet the test of Article 79 of the Qanun-e-Shahadat Order, 1984, has
no substance in view of the fact that each case is to be decided on its own
facts and the circumstances. We observed that the production of documents and
proof of documents are two different subjects. The document could be produced
in evidence that was always subject to proof as required under Art. 78 of Qanun-e-Shahadat,
order, 1984, which provides that “If a document is alleged to be signed
or to have been written wholly or in part by any person, the signature or the
handwriting of so much of the document as is alleged to be in that person's
handwriting must be proved to be in his handwriting”. The complainant
who wrote the mashirnama and signed the same being the author and the attesting
witness of the said document was examined before the trial court and exhibited
the same in his evidence by stating that after the recovery of chars, he wrote
and signed the same so also obtained the signatures of mashirs. During
cross-examination, his signature on it was not challenged/ disputed by the
defence counsel nor was it disputed that he had not written the same; hence the
prosecution proved the mashirnama to be prepared/written and signed by the
complainant. The other aspect regarding the proving of the document under Art,
79 of Qanun-e-Shahadat Order, 1984 which provides that “If a document is
required by law to be attested, it shall not be used as evidence until two
attesting witnesses at least have been called for the purpose of proving its
execution, if there be two attesting witnesses alive, and subject to the
process of the Court and capable of given Evidence. Provided that it shall not
be necessary to call an attesting witness in proof of the execution of any
document, not being a will, which has been registered in accordance with the
provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by
the person by whom it purports to have been executed is specifically denied.”
As already observed that the evidence of complainant being the author of the
mashirnama who also attested the same along with two other mashirs has not been
challenged by the defence counsel. Both the attesting witnesses were examined
by the prosecution who stated that they had signed the said document and it was
also exhibited in evidence. Their signature on it was not disputed nor denied.
During cross-examination, no substantial proof was produced by the appellant
that can be made based on discarding the evidence of prosecution witnesses.
14. It is observed that in the cases of narcotic
substances, a recovery memo is a basic document, which should be prepared by
the Seizing Officer, at the time of the recovery of articles, containing a list
thereof, in the presence of two or more respectable witnesses and memo to be
signed by such witnesses. The main object of preparing the recovery memo on the
spot and with the signatures of the witnesses is to ensure that the recovery is
affected in presence of the marginal witnesses, honestly and fairly, so as to
exclude the possibility of false implication and fabrication. Once the recovery
memo is prepared, the next step for the prosecution is to produce the same
before the Trial Court, to prove the recovery of the material and preparation
of the memo through the Scriber and the marginal witnesses. The complainant
when was examined before the Trial Court, which he produced and stated that
people were asked to act as mashir but they refused and after recovery of
contraband material was taken into possession through the recovery memo and on
the said memo signature was obtained from two witnesses after they read and
understand the contents. The PW Shoukat Ali claimed to be the recovery witness
and contended that recovery was effected in his presence and the presence of
other witnesses he also named those witnesses and further stated that he signed
the recovery memo, by giving details of the recovery of contraband material.
The complainant and the witness of the recovery corroborate each other on
material points, therefore, their statements are reliable and inspire
confidence as such, the prosecution has established the recovery of the
contraband material from the accused persons beyond the reasonable doubt.
15. In the case at hand, two eyewitnesses have
fully supported the case as has been discussed above. However, the sole
evidence of a material witness i.e. an eyewitness is always sufficient to
establish the guilt of the accused if the same is confidence-inspiring and
trustworthy and supported by another independent source of evidence because the
law considers the quality of evidence and not its quantity to prove the charge.
The accused can be convicted if the Court finds direct oral evidence of one
eye-witness to be reliable, trustworthy and confidence-inspiring as has been
held by the Supreme Court of Pakistan in the cases of Muhammad Ehsan vs.
The State (2006 SCMR 1857) and Niaz-Ud-Din v. The State (2011 SCMR 725).
There can be no denial of the legally established principle of law that it is
always the direct evidence that is material to decide a fact (charge). The
failure of direct evidence is always sufficient to hold a criminal charge as
‘not proved’ but where direct evidence holds the field and stands the test of
being natural and confidence-inspiring then the requirement of independent
corroboration is only a rule of abundant caution and not a mandatory rule to be
applied invariably in each case. Reliance can safely be placed on the case of Muhammad
Ehsan vs. The State (2006 SCMR-1857).
16. In the case in hand no proof of enmity with
the complainant and the prosecution witnesses has been brought on the record,
thus in the absence thereof, the competence of prosecution witnesses being ANF
officials was rightly believed. Moreover, a procedural formality cannot be
insisted at the cost of completion of an offence and if an accused is otherwise
found connected, then mere procedural omission and even allegation of improper
conduct of investigation would not help the accused. The Supreme Court of
Pakistan in the case of State/ANF vs. Muhammad Arshad (2017 SCMR
283), has held that:-
"We
may mention here that even where no proper investigation is conducted, but
where the material that comes before the Court is sufficient to connect the
accused with the commission of crime, the accused can still be convicted,
notwithstanding minor omissions that have no bearing on the outcome of the
case".
17. We further observed that in matters of recovery
of huge quantity of narcotics, the absence of enmity or any valid reason for
false involvement would also be circumstances tilting the case against the
accused. The reliance may be placed on the case of Salah-ud-Din v. The State (2010
SCMR 1962), wherein the Supreme Court of Pakistan has held that:-
"....No
enmity whatsoever has been alleged against the prosecution witnesses and there
is hardly any possibility for false implication without having any ulterior
motives which was never alleged. In view of overwhelming prosecution evidence
the defense version has rightly been discarded which otherwise is denial
simpliciter and does not appeal to logic and reasons..."
18. Learned counsel for the appellant emphasized
that there are material contradictions in the case of prosecution but no such
material contradiction has been highlighted to create doubt in the prosecution
story. The courts are supposed to dispose of the matter with a dynamic
approach, instead of acquitting the drug peddlers on technicalities as has been
held by the Supreme Court of Pakistan in the case of Ghulam Qadir v. The
State (PLD 2006 SC 61).
19. Thus based on the particular facts and the
circumstances of the case in hand as discussed above, we have found that the
prosecution has proven its case against the appellant beyond a reasonable doubt
by producing reliable, trustworthy and confidence inspiring evidence in the
shape of oral/direct and documentary evidence corroborated by the report of the
chemical examiner. The impugned Judgment passed by the learned trial court does
not suffer from any illegality, gross irregularities or infirmities to call for
interference by this court. Resultantly, the above criminal jail appeal is dismissed.
JUDGE
JUDGE