JUDGMENT SHEET.
HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.
CRIMINAL APPEAL NO.D-119 OF 2006.
Date Order with signature of Judge
PRESENT: 1. Justice Ahmed Ali M. Shaikh .
2. Justice Salman Hamid .
Appellant: Gulistan S/o Dhoongar Khan 2. Zahir Khan s/o Ghulam Nabi through Mr. Muhammad Ilyas Khan, Advocate.
Respondent: The State through Syed Meeral Shah, Deputy Prosecutor General, Sindh at Hyderabad.
Date of hearing: 23.09.2010.
Date of judgment: 12 .10.2010.
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Ahmed Ali M. Shaikh J: This appeal is directed against the Judgment dated 04.05.2006 passed by the learned Special Judge CNS/Sessions Judge, Nawabshah in Special Case No.35/2004 culminating from crime No.03/2004 of Police Station Excise Circle Nawabshah for offence punishable u/s 9(C) Control of Narcotics Substances Act, 1997 whereby the appellants were convicted and sentenced to suffer imprisonment for life with fine of Rs.100,000/- each, in lieu of default in payment of fine they have to suffer R.I. for three years, however, benefit of section 382-B Cr.P.C was extended to appellants/accused.
2. Briefly stating the facts of the case as per the F.I.R recorded on 07.03.2004 are that on the spy information, the complainant Altaf Hussain Assistant Excise and Taxation Officer alongwith other Excise officals intercepted vehicle viz. Truck bearing No.AJKA-2094 at National Highway near Sanjrani Weighing scale, Sabu Rahu Taluka Sakrand. The driver after seeing the Excise Police tried to speed away the truck and also made firing, however, complainant party compelled the driver who stopped the truck. The complainant party apprehended two persons including a driver, who was armed with pistol, which was secured by the complainant. The driver disclosed his name as Gulistan s/o Dangar Khan Ahmedzai whereas other person disclosed his name as Zahir Khan s/o Ghulam Nabi by caste Jani Khel both r/o Jalalabad Afghanistan. On their personal search, complainant recovered cash Rs.1500/- and Rs.400/- from driver Gulistan and Zahir Khan respectively. On search of truck, complainant recovered 23 K.G. Heroin in shape of 23 packets from secret box of cabin of the Truck. The complainant also recovered registration book of the truck in the name of Raja Muhammad Riaz Khan s/o Raja Muhammad yakoob Khan. Out of recovered heroin powder, 200 grams were separately sealed for chemical analysis and remaining property was also sealed. On inquiry, driver Gulistan disclosed the pistol to be unlicensed. Such mashirnama was prepared on the spot in presence of mashirs EC Mukhtiar Ahmed and ED Rehmat Ali. After usual investigation challan was submitted before the Court against the appellants.
3. After observing codal formalities, formal charge was framed against the appellants, to which they pleaded not guilty and claimed for trial.
4. To substantiate its case, prosecution examined P.W.1 AETO Altaf Hussain Kalhoro and P.W.2 ED Rehmat Ali and closed its side.
6. Statements of appellants were recorded u/s 342 Cr.P.C, in which they denied the allegations leveled by the prosecution and professed their innocents. However, appellants did not examine themselves on oath or examined any defence witness.
7. After hearing the learned counsel for the parties, trial court passed the impugned Judgment as stated above.
8. It is inter alia contended that the trial Court failed to appreciate the law involved in the case and sentenced the appellants without any cogent grounds and reasons; charge framed against the appellants is defective as such the conviction and sentence is liable to be set-aside; per learned counsel, there is no iota of evidence against the appellant No.2, therefore, sentence has been awarded on the basis of presumption and assumption; against appellant No.1 no presumption can be drawn without any evidence to the effect that the appellant was aware about secret cavity in which heroin was concealed; the registration book of the truck which was recovered from the truck in question revealed the name of its owner as Raja Muhammad Riaz Khan but no attempt was made to arrest said owner of the truck and in absence of any evidence of the knowledge of the driver in respect of the contraband, it cannot be presumed that the said contraband was in the knowledge of the driver; prosecution could not prove that the Heroin was recovered from the secret cavity of the tuck on the pointation of the driver; the chemical analysis was not carried according to the standard of test and the percentage of the Narcotics as such the same is highly doubtful and cannot be relied upon. In support of his contentions, learned counsel has relied upon following case laws:-
i) Ghulam Qadir Vs. The State PLD 2006 SC 61.
ii) Muhammad Noor & others Vs. The State 2010 SCMR 927.
iii) Zahoor Ahmed & another Vs. The State 1997 SCMR 543.
iv) Jehangir Muhammad Khan & others Vs. The State 2004 P Cr. L J 1424.
v) Nek Muhammad & another Vs. The State PLD 1995 SC 516.
vi) Karl John Joseph & another Vs. The State PLD 2005 Karachi 4,
vii) Amanat Ali & 2 others Vs. The State 2008 SCMR 991,
viii) Muhammad Riaz & 2 others Vs. The State 2006 SCMR 1378.
9. Conversely, Syed Meeral Shah Deputy Prosecutor General Sindh for the State supported the impugned Judgment on the ground that huge quantity of Heroin was secured from the secret cavity of the truck while the accused were driving in the said truck.
10. We have heard learned counsel for the parties and perused the record with their able assistance. Both the prosecution witnesses had demonstrated with complete unanimity on all the aspects of the case. Learned counsel for the appellants could not pin point any contradiction in the statements of the prosecution witnesses, so as to create a doubt in the prosecution case. No enmity, ill will or grudge has been alleged against the prosecution witnesses to falsely implicate the appellants and despite lengthy cross examination, their veracity could not be shattered and nothing favourable to the defence could be extracted from their statements. The most important aspect of the case is that a huge quantity of 23 K.Gs of Heroin could not thrust upon the appellants in absence of any tangible and concrete enmity which has not been proved by the defence. Even the appellants are not Pakistani citizen but Afghan nationals, therefore, question of false implication is out of consideration. Learned counsel for the appellants could not pin point any misreading or non reading of evidence resulting into miscarriage of justice. The prosecution witnesses being members of Excise police party were the natural witnesses and their testimony could not be discredited on the ground that they belong to Excise Department. Reference in this context may be made to the case of Muhammad Azam Vs. The State 2003 SCMR 1237 and Riaz Ahmed Vs. The State 2004 SCMR 988 and Nazir Ahmed Vs. The State 2004 SCMR 1361. Admittedly contraband material was recovered from the cavity of the truck and both the appellants were traveling in the truck. The appellants during trial failed to substantiate that at the time of incident they were not traveling in the truck and Heroin was not recovered from secret cavity of the said truck. Section 29 of Control of Narcotics Substances Act provides that it may be presumed unless and until a contrary is proved that the accused has committed offence under this Act in respect of any Narcotic drug, psychotropic substance or controlled substance and once prosecution established recovery beyond any doubt, then burden is shifted to the defence to discharge such burden and prove innocence of the accused and the conviction and sentence recorded by the trial Court would be unexceptional when the accused fails to discharge burden as per provisions contained in section 29 of the Act. The defence version that recovered Heroin has been foisted upon the appellants is not found plausible. The prosecution has successfully brought home the guilt of the appellants to hilt by producing trustworthy, reliable and overwhelming evidence, which has been further corroborated by the Chemical Examiner’s report. It is pertinent to mention here that the samples were obtained from each packet, such fact is proved through chemical examiner’s report.
11. With profound respect, the case law relied upon by the learned counsel for the appellants is not helpful to the case in hand. In Ghulam Qadir’s case (supra), accused were convicted by the trial Court and their appeal was also turned down by the High Court, however, they approached the Honourable Supreme Court but their petition was dismissed.
In Muhammad Noor’s case (supra) three accused were convicted u/s 9-C of C.N.S Act and were sentenced to imprisonment for life. Conviction and sentence awarded by the trial Court was maintained by the High Court. They filed Criminal appeal before Honourable Supreme Court and Honourable Supreme Court dismissed the appeal of two appellants, however, appeal of third accused was allowed and he was acquitted of the charge on the ground that the prosecution could not bring evidence to indicate that the accused knew that Narcotics substance was in the secret cavity or had knowledge of that place to attract the provisions of article 122 of Qanoon-e-Shahadat Order, 1984, however in the case in hand both the appellants are Afghan nationals, belong to same country, they were traveling together in the truck and tried to escape but ultimately they were over powered. The Heroin was recovered from secret cavity of cabin of the truck in which both were found sitting and except them no one else was there. The conduct of the accused whereby they tried to make their escape good also suggests that they had conscious knowledge about the concealment of the Heroin in the cabin of the truck.
In Zahoor Ahmed’s case (supra) the Honourable Supreme Court set-aside the Judgment passed by the trial Court on the ground that no evidence was available on record to show that the accused were either owners of the truck or of the Heroin recovered from its secret place or that they knew about the concealment of the Heroin in the truck. On the contrary, in the case in hand, the appellants instead of stopping the truck tried to flee and such conduct on the part of accused beyond doubt suggests that they had knowledge about concealment of the Heroin in the truck.
In Jehangir Muhammad’s case (supra) the sentence of one accused was reduced from death to imprisonment for life and that of other accused to 10 years from whom Narcotics was recovered in lesser quantity, however, in present case, none of the appellants has been awarded death sentence nor lesser quantity of Narcotics substance was recovered but a huge quantity of Heroin ie..23 K.Gs was recovered which cannot be foisted upon the appellants without any ill will, enmity or grudge.
In Nek Muhammad’s case (supra), the appellants were found sitting inside the public transport and they were booked for offence under article 3,4 Prohibition (Enforcement of Hadd) Order 1979 and since begining they took a plea that they were passengers of the bus, none of them was driver and in this respect they examined defence witnesses and produced tickets.
The facts of Corl John Joseph’s case (supra) are quite distinguishable, therefore, need no discussion.
As far as Amanat Ali’s case (supra) is concerned, the accused persons were said to be sitting inside the car from which 2 ½ K.G Heroin was recovered from its secret cavity, out of which only one gram was sent for chemical analysis. They were awarded R.I. for 10 years, their appeal was also turned down by High Court, however, one of the appellant who was driving in car was acquitted by the Honourable Supreme Court on the ground that prosecution has not been able to prove charge against Muhammad Lateef and Zafar Iqbal beyond reasonable doubt and there was no evidence that they being companions of co-accused had conscious knowledge of the Heroin in the car, whereas in the case in hand, the evidence has shown that the appellants had conscious knowledge of heroin.
In Muhammad Riaz’s case (supra) three accused, one male and two female were convicted by the trial Court, however, Honourable Supreme Court partly allowed the appeal whereby sentence of male accused was reduced to 14 years R.I. and female accused to R.I. for 10 years each accordingly on the ground that only 4. K.G charas and opium was proved, whereas in the case in hand, a huge quantity of 23 K.G Heroin was recovered.
12. In view of what has been discussed above, we are of the considered view that this appeal has no merit and therefore, same is dismissed.
JUDGE
JUDGE
A.K