IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No.D-22 of 2022.

PRESENT

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Jawad Akbar Sarwana,

Appellants : Mehmood Khan Pathan & 02 others, through

Mr. Rehmat Khan Mandokhail, Advocate.

Respondent : The State, through Mr. Ali Anwar Kandhro,

Additional Prosecutor General, Sindh.

Date of hearing : 17.01.2024.

Date of Judgment : .02.2024.

J U D G M E N T.

Muhammad Saleem Jessar, J.- Through this criminal jail appeal, appellants Mehmood Khan son of Sher Muhammad Pathan, Sher Muhammad son of Abdul Muhammad Pathan and Muhammad Shafique son of Gul Pathan, have challenged the judgment dated 20.04.2022, passed by learned Additional Sessions Judge-I/ Model Criminal Trial Court, Jacobabad, in CNS Case No.36 of 2023, re-State v. Mehmood Khan & others, whereby the appellants having been found guilty of the charge were convicted for an offence under Section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.100,000/- (Rupees one lac only) each, in case of default in payment of fine to undergo simple imprisonment for 01 year more, with benefit of Section 382-B, Cr.P.C.

2. Briefly, the facts of the prosecution case are that on 23.06.2021, Excise Inspector Ali Gohar Sahito of PS Excise Police, Jacobabad, during checking apprehended the appellants/accused Mehmood Khan, Sher Muhammad and Muhammad Shafique at 4.00 a.m., at Excise Check Post near Agriculture College Shikarpur Road, Jacobabad and recovered 26 packets of charas weighing 26 kilograms from their possession, which they were transporting in Mazda Truck No.NAE-900 Quetta. The charas was sealed at spot. After completing requisite formalities at the spot, the appellants and recovered charas along with vehicle were then brought at the police station, where instant FIR was registered on behalf of the State.

3. The appellants pleaded ‘not guilty’ to the charge and claimed to be tried and the prosecution examined PW-1 complainant/Excise Inspector Ali Gohar and PW-2 mashir EC Asif Majeed. They produced the relevant documents. The trial Court, on the basis of evidence of these witnesses declared the appellants guilty of the charge and sentenced them, as stated above.

4. Learned Counsel for the appellants submitted that a father and his sons have been roped by the police in this false case. As far as alleged contraband is concerned, it was foisted upon them as they failed to grease the palms of complainant. The plea taken by the appellants was that they were coming from Quetta in a coach along with clothes which they had bought for their own shop being run by them at Karachi and at relevant post the coach was intercepted by the concerned Excise Police and whilst checking the passengers the complainant of this case had made a demand from the appellants to grease his palms, which they could not; hence, he was annoyed and by taking somersault implicated them in this false case by foisting the contraband. Learned Counsel submitted that the contraband was recovered on 23.06.2021 whereas was sent to laboratory on 24.6.2021 and during intervening period there is no record of safe custody, before whom it was deposited under any entry. In his support, he draws further attention of the Court to the fact that neither Register No.19 was produced nor incharge Malkhana was examined by the prosecution before trial Court to believe that the property allegedly recovered from the appellants by the complainant/IO was deposited in safe custody and that too when 24 hours have not been explained by the complainant; the presumption would be that plea taken by the accused carries weight. He has also taken us to page-51 of the paper book, which is the arrival entry. Per said document, the complainant returned to police station along with the accused, case property viz., 26 kgs charas and Mazda Truck. Learned Counsel further submitted that the Truck in question was not owned by the appellants instead it was owned by one Ghulam Muhammad Pathan, who after final decision of the main case had obtained it under Section 517, Cr.P.C. In support of his contention, he placed on record a simple photocopy of letter dated 13.05.2023, issued by Shristedar of the trial Court, which is taken on record. He therefore submitted that the prosecution has failed to establish the charge against the appellants; hence, by allowing instant appeal the appellants may be acquitted of the charge by extending benefit of doubt. In support of his contentions, he placed reliance upon the cases reported as Shahzeb v. The State (2023 PCr.LJ 1720), Javed Iqbal v. The State (2023 SCMR 139), Saeedullah v. The State (2022 YLR Note 59), Ameer Zeb v. The State (PLD 2012 Supreme Court 380), Khair-ul-Bashar v. The State (2019 SCMR 930), Akhtar Meen v. The State (PLD 2022 Sindh 84) and case of Khalid Razzaq v. The State and another (2020 YLR 2524).

5. Conversely, the learned Addl. P.G. opposed the appeal and submitted that prosecution has adduced sufficient material as well as evidence, therefore, there is no illegality or infirmity in the impugned judgment, which may warrant interference by this Court. As far as claim of the appellants that they have been falsely implicated, learned Addl. P.G. points out that neither they have examined any DW nor recorded their own statement on oath in support of their plea. He submitted that though the appellants have taken plea of their being businessmen of the clothes and adduced the receipts of same; however, have failed to examine any DWs/shopkeeper from whom they bought the clothes they were carrying. He further submitted that as far as safe custody of the contraband, as claimed by the appellants, is concerned, it is no ground in view of dicta laid down by the Apex Court in the cases of Zain Ali v. The State (2023 SCMR 1669) and Muhammad Sarfraz v. The State and others (2017 SCMR 1874).

6. We have heard learned Counsel for the appellants as well as learned Addl. P.G. for the State, and have gone through the material made available before us on the record.

7. This case involves recovery of 26 kilograms of contraband viz. charas, which per prosecution case was recovered on 23.6.2021 by Excise Police during snap checking at Excise Check Post situated at Shikarpur Road, Jacobabad. For establishing the charge prosecution examined and relied upon evidence of two PWs, namely, complainant/Excise Inspector Gul Muhammad Bhutto and mashir/Excise Constable Asif Majeed. We have examined the testimonies of both these prosecution witnesses with critical eye and find that both of them have fully supported the prosecution case on all material aspects of the case. Complainant Excise Inspector Ali Gohar Sahto has deposed that on 22.06.2021 he along with staff including mashir EC Asif Majeed left Excise PS in the official vehicle at 9.45 p.m. under entry No.1 and started checking vehicles at Excise Check Post, Shikarpur Road, Jacobabad and during checking at around 4.00 a.m. on 23.6.2021 found Mazda Truck No.NAE-900 Quetta coming from northern direction, which on being signaled by them was stopped; three persons i.e. the appellants were sitting, who were got down and they on enquiry disclosed their identity to be appellant Mehmood Khan, being driver of the Mazda Truck, another person identified himself as Sher Muhammad son of Abdul Muhammad Pathan, resident of Naya Abad, Chaman, District Killa Abdullah, Balochistan, second driver of the vehicle and third one disclosed himself as Muhammad Shafique son of Gul Muhammad Pathan, resident of Killa Abdullah Balochistan, being cleaner of said vehicle. EC Asif Majeed and EC Mir Jeeand were appointed as mashirs and in their presence personal search of accused was conducted, during which cash Rs.2000/- from accused Mehmood, cash Rs.1500/- from accused Sher Muhammad and Rs.500/- from accused Muhammad Shafique were recovered. He deposed that the Mazda Truck was found having a secret box at the upper portion of cabin, where 26 packets wrapped in plastic were lying, and each packet was found containing 2 slabs of charas, total 52 slabs and the entire charas became 26 kilograms in weight, out of which 26 slabs weighing 13 kilograms were separated and sealed as sample in a white colour ‘Bachka’, while rest 13 kilograms charas was sealed separately in another white colour ‘Bachka’. The vehicle of accused was impounded and such memo was prepared under the signatures of above-named mashirs, who also signed the parcels of charas; whereafter, the accused along with recovered property were taken to Police Station Excise, Jacobabad, where he registered FIR on behalf of State. He then recorded 161, Cr.PC statements of PWs, visited place of incident along with same mashirs, prepared such memo under their signatures. On 24.6.2021 i.e. on the next day he sent sampe of charas to chemical laboratory through EC Asif Majeed. He also obtained verification report of the vehicle from ETO-V Quetta and on receipt of Chemical Report submitted challan.

8. EC Asif Majeed, who acted as mashir of the entire proceedings and through whom the sample parcel of charas was sent to laboratory, was examined by the prosecution as PW-2. He has deposed in the same line as that of complainant/IO Excise Inspector Ali Gohar. He has supported the prosecution case on almost all material points. He deposed that on 22.6.2021 he and other staff accompanied Excise Inspector Ali Gohar Sahto and proceeded from Excise PS Jacobabad for checking suspected vehicles and started checking vehicles at Excise Check Post situated near Agriculture College, Jacobabad; on 23.6.2021, at about 4.00 a.m. Mazda Truck No.nae-900 Quetta was found coming from northern side on the road, which was stopped; three persons were found in the vehicle, who were got down. After enquiring their identity, which they disclosed to be the present appellants, the Excise Inspector cited him and EC Mir Jeeand as mashirs and conducted personal their search, during which some amounts were recovered from each of them. During checking of Mazda Truck a secret cavity was found in it’s cabin, wherein 26 packets of plastic wrappers containing 2 slabs of charas in each packet, total 52 slabs, were found lying. Weight of each slab became 500 grams and the total weight of 52 slabs was 26 kilograms, out of which 26 slabs weighing 13 kilograms were sealed as sample for examination, while remaining 13 kilograms charas was sealed separately. After preparation of requisite memo and completion of other formalities at the place of recovery, the accused along with recovered charas and vehicle were brought at Excise Police Station, where FIR was registered by Excise Inspector Ali Gohar. He further deposed after recording their 161, Cr.P.C statement and visiting the place of wardat, such memo was prepared under his signature and of co-mashir EC Mir Jeeand and then on 24.6.2021 sample parcel of charas was dispatched by the Investigating Officer through him to Chemical Laboratory, Sukkur at Rohri, which he deposited in the laboratory on the same day.

9. Both these witnesses were cross-examined fully by the learned Counsel for the accused/appellants, but nothing favourable to the accused could be extracted from them. These witnesses remained consistent on each and every material point and no material contradiction in their statements was pointed out by the learned Counsel for the appellants. No animosity or ill will on the part of both these witnesses has been shown to implicate the appellants falsely or foist such a huge quantity of contraband against them. The evidence of these witnesses was further corroborated by positive report of Chemical Examiner. No evidence was adduced by the appellant in support of the plea taken by them that they were coming from Quetta in a coach along with clothes which they had bought for their own shop being run by them at Karachi and at relevant post the coach was intercepted by the Excise Police and during checking the complainant demanded bribe money from them, and on their refusal charas was foisted upon them. The appellants have failed to examine any DWs/shopkeeper from whom they bought the clothes per their claim they were carrying. Moreover, the parcel of contraband was also sent for analysis promptly i.e. on 24.6.2021, the next day of recovery, as such, the contention of learned Counsel for the appellants that safe-custody of the contraband during the intervening period of recovery and dispatch has not been established, carries no weight and in this context no suggestion was even put to the witnesses. It may be observed here that though there was a minor delay in sending the sample parcel to the Laboratory, but the rules to that effect are directory and not mandatory; even otherwise, there is nothing on record to establish that the said parcel was tampered with, rather the evidence led by the prosecution established that the parcel received by the laboratory remained intact. Learned Counsel during the course of his arguments contended that except appellant Mehmood Khan, the driver of Mazda Truck, appellants Sher Muhammad and Muhammad Shafique being his father and brother respectively had no knowledge about the contraband charas concealed in the secret cavities of Mazda Truck, therefore, they have been wrongly been convicted by the learned trial Court. In this regard, it would be suffice to say that the manner in which the contraband was hidden in the secret cavities could not be performed by single person and they being members of one and same family cannot be absolved of their liability; hence, the argument so advanced being devoid of any force carries no weight. From the evidence of witnesses examined by the prosecution at trial and other material brought through them on record, we find that the prosecution has proved its case through trustworthy ocular account, which is corroborated by the positive report of Chemical Examiner, therefore, the trial Court has rightly held the appellants guilty of the charge.

10. Upshot of above discussion is that we do not find any substance to interfere with the conclusion arrived at by the learned trial Court and impugned judgment does not seem to be suffering from any legal or factual defect. Consequently, instant appeal being devoid of merit is dismissed.

JUDGE

Tahir Qazi PA/*