IN THE HIGH COURT OF SINDH AT KARACHI
Present:
Mr. Justice Shahid Anwar Bajwa and
Mr. Justice Irfan Saadat Khan.
Cr. Appeal No.229/2009: Atif Shahab vs. State.
Mr. Sardar Muhammad Aslam, advocate for the appellant.
Mr. Noorullah Makhdoom, Special Prosecutor, CNS, for the respondent.
Cr. Appeal No.230/2009: Ashiq Hussain vs. State.
Mr. Sardar Muhammad Aslam, advocate for the appellant.
Mr. Noorullah Makhdoom, Special Prosecutor, CNS, for the respondent.
Date of hearing: 5th July, 2010.
J U D G M E N T
IRFAN SAADAT KHAN, J: These two appeals arise out of a common judgment passed in Special Case No.92 of 2005 whereby the appellants Atif Shahab and Ashiq Hussain were convicted under section 9-C of the Control of Narcotics Substances Act, 1997 and sentenced to suffer life imprisonment and to pay fine of Rs.100,000 and in default of payment of the fine to suffer further R.I. for six months. The appellants were also extended benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that on 18.5.2005 complainant Jehangir Khan, Inspector/SHO, PS ANF, Gulshan-e-Iqbal, while on patrol duty alongwith his subordinates, received spy information that narcotics dealers Shah Wali Khan, Mudasir Shah and Ashiq Hussain have brought huge quantity of Charas from Peshawar in secret cavities of bus bearing No. C-1211 and they are going to deliver the same to their customer in Surjani Town. On this information the ANF police party proceeded towards Sohrab Goth Chowrangi and noticed that the pointed bus is going towards Edhi mortuary. The bus was stopped and four persons were apprehended who were sitting in the bus. They were identified as Atif Shahab, Mudasir Shah, Shah Wali Khan and Ashiq Hussain. The said bus was searched and 100 packets of charas, each weighing one kilogram, were recovered from the diesel tank. The accused and the bus were brought to the ANF Police Station, Gulshan-e-Iqbal and a case under section 9-C of the Narcotics Substances Act was registered against them. After usual investigation challan was submitted before the trial Court and charge was framed against the accused persons to which they pleaded not guilty. Prosecution in support of its case examined Mir Badshah, AD, ANF, Peshawar, as PW-1, PC Syed Pervaiz Hussain Shah as PW-2 and Inspector Jahangir Khan of PS ANF, as PW-3, who also produced some exhibits. The learned trial Court found the appellants guilty and convicted and sentenced them as stated above.
3. Mr. Sardar Aslam Afridi, learned counsel for the appellants in both the appeals submitted that so far as appellant Atif Shahab is concerned, the spy informer did not give his name to the police party as one of the smugglers. He also submitted that this appellant was not the driver of the bus nor he opposed the search of the bus. The learned counsel also submitted that though a driving license is alleged to have been recovered from the possession of appellant Atif Shahab but, despite such request by the appellant, the same was not sent for verification to the concerned authority. He also submitted that the recovery was not made on the pointation of the appellant Atif.
4. So far as appellant in Criminal Appeal No.230/09 is concerned, the learned counsel submitted that he was not connected with the bus at all and was only a passenger. Learned counsel states that nothing incriminating was recovered from the possession of that appellant Ashiq Hussain. The learned counsel submitted that since the prosecution has not been able to prove its case beyond any reasonable doubt, the learned trial Court has erred in convicting and sentencing the appellants.
5. In support of his contentions the learned counsel relied on the cases reported as (i) Rab Nawaz and others V. The State (P L D 1994 Supreme Court 858), (ii) Nazar Hussain and another V. The State (2007 Y L R 1601) and (iii) Ghulam Saddique V. The State (2005 Y L R 605).
6. Mr. Noorullah Makhdoom, Special Prosecutor, CNS, for the respondent, supported the impugned judgment and stated that it is a fool proof case. The learned Special Prosecutor further submitted that the Prosecution has proved its case beyond any reasonable doubt. He submitted that the appellants are involved in a heinous crime and are not entitled to any leniency.
7. We have heard the learned counsel for the parties and have gone though the paper book and the R&P minutely through their assistance.
8. First, we propose to take up Criminal Appeal No.229 of 2009 filed by appellant Atif Shahab. A perusal of the FIR shows that the alleged informer while giving information about the smuggling of narcotics substance clearly stated that “narcotics smugglers, namely, Shah Wali, Mudasir Shah and Ashiq Hussain” were smuggling huge quantities of charas in bus No.C-1211 coming from Peshawar to Karachi. The spy informer did not mention the name of appellant Atif as one of the smugglers. It is also pertinent to note that though the appellant made an application for verification of the driving license allegedly recovered from his possession but no verification was carried out and the application of the appellant was dismissed. It was the duty of the Prosecution to have proved the guilt of the appellant beyond any shadow of doubt, however, in this case the Prosecution had failed to discharge its duty. In the case of RAB NAWAZ and others (supra) it was held as under:
“It is well‑established principle of criminal jurisprudence that the prosecution has to establish its case beyond any shadow of reasonable doubt and that they cannot derive any benefit from the weakness of defence. All the appellants were charge‑sheeted for having been found transporting contraband Chaias weighing 3,250 kilograms punishable under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 without discrimination as to who are the principal offenders and who abetted the same to make them; liable under Article 26 of the Prohibition Order. This is apparently a technical omission but since Rab Nawaz, Excise Inspector and Mir Ajab and Sajjad Ahmad, Excise Constables were not found physically in possession of the contraband Charas and were implicated in the offence ion the apprehension that they might be aiding/abetting the principal accused Jan Muhammad and Wali Muhammad who were admittedly in possession of huge quantity of contra and Charas transporting the same in truck No.2415‑MR, it would have been proper to have specifically mentioned the role attributed to each set of accused ' the chargesheet so that they could tender a proper defence.”
In the same case it was also held as under:
Needless to emphasise, that in a situation like the one in hand if the accused are able to convince the Court about the probability, of their assertion being true and standing to reason, the benefit of doubt is to be extended to them. This principle was firstly recognised in the case of Safdar Ali v. Crown PLD 1953 Federal Court 93 and followed subsequently by this Court from time to time and also in the case of Nadeeni‑ul‑Haq Khan v. The State 1985 SCMR 510). The relevant dictum is being reproduced for convenience sake:‑‑
"In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."
In the case of Nazar Hussain and another (supra) it was held as under:
“It is pointed out that in most of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature have enacted a provision in the shape of section 29 in the Act, 1997 to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drugs. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused presumed to be guilty of the offence unless he disproves the allegation and charge. The said section reads as under:--
29. Presumption from possession of illicit articles.---In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) Any narcotic drug, psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plant growing on any land which he has cultivated;
(c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or
(d) any material which have undergone any process towards the production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily.
The above section expressly cast a duty upon the Court to presume in a trial under this 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 a drug. 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 make mere physical custody without knowledge of 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 the same 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 the case Inder Sain v. State of Punjab (AIR 1973 SC 2309).”
9. In the present case it is an admitted position that the charas was not recovered from the possession of the appellant Atif and the same was recovered from some hidden place in the bus after search by the ANF personnel. The appellant Atif Shahab admittedly did not object to the search of the bus and was quite cooperative with the police party. This clearly shows that there is a possibility that it was not within the knowledge of the appellant Atif Shahab that there was charas in the bus.
10. In the case of Ghulam Saddique (supra) the facts were that police on spy information intercepted a Datsun No. LC 4018 near Lucky Cement Factory, Bannu. When the said vehicle stopped a person namely Hamidullah is said to have got down from the vehicle and disappeared in the nearby trees while driver of the vehicle namely Ghulam Saddique was arrested and sent up for trial alongwith the accused Hamidullah who was also arrested later on. Both the appellants were convicted and sentenced by the trial Court. However, the appellate Court acquitted them vide the cited judgment. The reasons which prevailed with the learned Division Bench of the Peshawar High Court for acquitting the driver namely Ghulam Saddiqu were as under:
“The only question which needs our consideration is, as to whether there is any evidence available on record to show that appellant Ghulam Saddique had any knowledge of the recovered charas and Arms and ammunition lying in the rear portion of the Datsun. Our answer is certainly in the negative. There is no material available on record to prove as to who had kept such huge quantity of charas and Arms and ammunition in the Datsun. There is also no evidence that appellant Ghulam Saddique had knowledge of the presence of narcotics and Arms and ammunition in the vehicle. No legal evidence has been brought on record to connect the appellant with the commission of offence and mere presence of the appellant at the time of occurrence without any knowledge and in the absence of conscious possession over contraband of the appellant cannot be the basis of his conviction. No doubt huge quantity of contraband of narcotics etc. is allegedly recovered but that factum alone cannot be made basis of conviction of the appellant. The mere fact that the police witnesses had no enmity or grudge or motive to falsely implicate the appellant, by itself, is not a strong circumstances to hold that whatever has been alleged by the prosecution should be implicitly relied upon without asking for supporting evidence. In this regard, I am fortified by the view taken in Sarwar Jan v. The State (2004 PCr.LJ Peshawar 1224).”
11. In the case in hand, it is an admitted fact that the spy informer did not give the name of the appellant Atif Shahab as one of the smugglers nor the prosecution has placed on record any confidence inspiring evidence to connect the appellant Atif with the contraband items seized from the said bus. It is also to be noted that the owner of the bus was not involved in the case. If the appellant Atif was driver of the said bus then he was in the employment of the owner of the bus and this fact should have been proved by involving the owner of the bus either as an accused or as a witness. However, and very surprisingly, the owner was not at all connected with the case and was completely ignored. There is also the statement of complainant Inspector Jehangir Khan that appellant Atif did not object to the search of the vehicle while the other inmates of the bus objected to the same. Thus, there is no incriminating material against the present appellant which may be made basis for his conviction and sentence as neither the factum that the said appellant was driver of the bus was proved beyond any reasonable doubt nor it was proved that he was connected with the recovered charas in any manner as even if it is presumed that he was driver of the bus there is the statement of the complainant/SHO that he did not object to the search of the vehicle and the fact that his name was not disclosed by the spy informer as one of the smugglers. We have also noted that during interrogation co-accused Shah Wali has disclosed that appellant Atif Shahab was hired as driver of the bus for one trip only. It is not clear from the record as to who drove the bus from Peshawar to Karachi as it has also come on record that the actual driver of the bus namely Askar Khan @ Jehangir Khan, who has already been acquitted of the charge vide the impugned Judgment, was the actual driver of the bus, who has driven the bus from Peshawar to Karachi and on reaching the last stop i.e. Sohrab Goth, left the bus and it is alleged that appellant Atif took his place. The Prosecution has not made any effort to show whether it was Askar Khan or appellant Atif Shahab who had driven the bus from Peshawar to Karachi. It may again be pointed out here that the spy informer has specifically stated that “Narcotic dealer Shah Wali, Mudasir Shah and Ashiq Hussain have brought huge quantity of Charrras” and has not even said that some other persons are also with them.
12. In an unreported judgment authored by one of us, namely, Irfan Saadat Khan, J, the role of a driver of a vehicle found to be carrying some contraband items in a hidden place was minutely discussed. It would be advantageous to reproduce the relevant portion therefrom which reads as under:
“We have noted that learned Sessions Judge has primarily convicted the appellant on the sole ground that as he was the driver of the bus hence he alone is responsible for the entire episode. We are afraid we do not subscribe to his view as this Bench in the decision given in Cr. Jail Appeal No.D-02 of 2009 comprising of one of us namely Muhammad Ather Saeed, J, while discussing the role of the driver as for as possession of narcotics and arms is concerned has categorically observed as under:
"The key question that therefore requires determination is whether the Appellants could, on the facts as found by the CNS Court, be regarded beyond reasonable doubt as having possession of the charas. The charas was not found in the actual physical possession of either of the Appellants. The question therefore is whether it was established beyond reasonable doubt that the Appellants knew or must be regarded as having known that the charas was in or on board the truck. If so, then the Appellants would have had possession of the charas within the meaning of section 6, and since the truck was moving from one place to another, the Appellants would be regarded as transporting the drug.
In our view, for the reasons herein after stated, the answer to the above question must be in the negative. Neither of the Appellants was the owner of the truck. They were simply its driver and his helper. The charas itself was not lying in the truck in an open or easily accessible place or manner, e.g., in the back of the truck or under the driver's seat (whether openly or in a locked container or box). (In Shah Wali and another v. The State PLD 1993 SC 32, the heroin was found wrapped in a plastic and cloth envelop which was lying on the passenger seat of the car, while in Ghulam Qadir v. The State PLD 2006 SC 61, the prohibited substance was found lying openly in eight sacks on the roof the coach. In both cases, the appeals of the convicted accused were dismissed.) In the present case however, the charas was hidden in a secret compartment inside the body of the truck (near the petrol tank). This secret compartment was not pointed out or revealed by either of the Appellants, but was located upon a search of the truck's body by the excise officers. The compartment had to be opened with the help of a hammer, i.e., it was locked or sealed in some manner. Although the Appellants were searched, the record does not show whether any key or other tool to open the compartment was found on their person or in the truck. The charas was in packets of one kg. each, and each kilogram was wrapped in plastic. The record does not show whether any attempt was made to determine whether Appellants had handled the packets. For example, the packets could have been dusted for fingerprints for comparison with the fingerprints of the Appellants. If such an exercise had revealed a match with either (or both) of the Appellants, that would have established that they had handled the packets, e.g., while placing them in the secret compartment. These are just a few factors which come readily to the mind of any reasonable person when considering the question whether the Appellants knew or could be regarded as knowing that the charas was on board the truck. No doubt a professionally trained team, carrying out a properly conducted search, could think of many more ways of connecting the Appellants with the charas in a legally relevant and permissible manner. No such method was however, adopted nor was any such exercise carried out. There is also nothing on the record to show the destination of the truck or the duration of the journey; the only thing that is established is that the truck was coming from Sukkur side. (In Nadir Khan and another v. The State 1988 SCMR 1899, it was held that the person in charge of a vehicle on a long journey (in that case, from Peshawar to Karachi) can be saddled with knowledge of the contents of goods being carried in the vehicle.) In our view therefore, it cannot be said to have been established beyond reasonable doubt that the Appellants knew or could be regarded as knowing that the charas was in or on board the truck. This is so notwithstanding the existence of other facts that could be said to point in the opposite direction. For example, the truck sped away instead of stopping when signaled to do so, and the secret compartment was located near the petrol tank. These facts can reasonably raise a suspicion. However, suspicion is not proof, and it is certainly not proof beyond reasonable doubt.
The CNS Court observed, while assessing the evidence, that "a huge quantity" of charas was "recovered from the truck which was in exclusive possession" of the Appellants. It also observed that there was no material inconsistency between the testimonies of the two prosecution witnesses. With respect, the CNS Court has missed the point and committed a fundamental legal error. Even if the testimony of the witnesses is consistent, the question always is whether the facts proved thereby establish the offence beyond reasonable doubt. For this purpose, the nature of the offence and its ingredients or elements need to be clearly understood and kept in mind. It is only then that the court will know what needs to be proved, and thereby be able to assess whether what is in fact proved at the trial establishes the offence beyond reasonable doubt. In the present case, it appears that the CNS Court has simply equated the "excusive possession" of the truck with possession (and hence transportation) of the charas discovered on board the truck. However, for the reasons given above, this equation is incorrect and does not follow automatically or inevitably. Even the conclusion that the truck was in the Appellant's "exclusive possession" is not accurate. No doubt the Appellants were the only persons in the truck when it was intercepted by the excise officers. But that does not automatically establish that the truck was in their exclusive possession (or indeed, in their possession at all) when the charas was placed in the secret compartment, or that they knew or must be regarded beyond reasonable doubt as knowing that the charas was on board the truck. The CNS Court has simply jumped to a conclusion and made an assumption that is not warranted or supported by the facts as proved before it. This is a fundamental and fatal legal error.
In our view therefore, there is reasonable doubt whether the Appellants could be regarded as having possession of the charas within the meaning of section 6 as explained above. There is thus also reasonable doubt as to whether the Appellants could be regarded as transporting the charas within the meaning of the said section. Their conviction under section 9 of having committed an offence under section 6 is therefore also unsound and unsustainable in law."
13. Now, coming to the case of appellant Ashiq Hussain (Criminal Appeal No.230 of 2009), we are of the opinion that the case of the appellant Ashiq Hussain is on different footings. The main contention raised by the learned counsel for the appellant was that appellant Ashiq Hussain was a passenger in the said bus and had no connection with the Charas, however, during evidence this appellant failed to produce any ticket for his journey from Peshawar to Karachi or from any other destination, as the case may have been. Even if it is presumed that appellant Ashiq Hussain was only a passenger then he should have disembarked at the last stop i.e. Sohrab Goth. It is also pertinent to note that the spy informer specifically named Ashiq Hussain as one of the smugglers and thus he was connected with the contraband goods. As per the provisions of Section 29 of the Control of Narcotics Substances Act. 1997, in trial under the said Act, it is to be presumed that the accused has committed an offence unless he proves otherwise. The learned counsel for the appellant Ashiq Hussain has submitted that the appellant Ashiq Hussain was only a passenger in the said bus but he has failed to produce any ticket for his passage or any person as a witness to show that he purchased a ticket for passage from Peshawar to Karachi or any other sector which may have been subsequently lost by him. He has not produced any evidence to show that he was only a passenger in the bus and was coming from Peshawar to Karachi. This appellant has not been able to prove that he was not connected with the Charas recovered from the said bus. The Prosecution has proved its case against appellant Ashiq Hussain beyond any reasonable doubt and the learned counsel for the appellant Ashiq Hussain has not been able to shake the evidence produced by the Prosecution with regard to date, time and recovery of contraband items and presence of appellant Ashiq Hussain in the bus at the time of recovery of the Charras. Learned counsel for the appellant Ashiq Hussain has not been able to point out any material contradiction/discrepancy in the evidence recorded against the said appellant. No substantial material has come on record to show that the PWs in this case have any enmity or ill-will against appellant Ashiq Hussain and that for such reason he has been falsely implicated in this case. The report of the Chemical Examiner also fully supports the case of the Prosecution. Thus, the Prosecution has proved its case against appellant Ashiq Hussain beyond any reasonable doubt.
14. For the above reasons, we accept Criminal Appeal No.229 of 2009 filed by appellant Atif Shahab, set aside the conviction and sentence passed against him by giving him benefit of doubt and acquit him of the charges leveled against him. He shall be released forthwith if not required in any other case, however, we dismiss Criminal Appeal No.230 of 2009 and maintain the conviction and sentence passed against appellant Ashiq Hussain.
Karachi, the ___ July, 2010. Judge
Judge