IN THE HIGH COURT OF SINDH, BENCH AT LARKANA
Cr. Jail Appeal No.72 of 2010 &
Cr. Appeal No.78 of 2010
Present: Mr. Justice Shahid Anwar Bajwa &
Mr. Justice Muhammad Ali Mazhar
Judgment
Date of hearing: 20.10.2011.
Appellants: Bacha Mir and Karamat Khan.
Respondents : The State.
Mr. Abdul Baqi Jan, Advocate for the appellants along with appellants produced in jail custody.
Mr. Naimatullah Bughio, State counsel.
Muhammad Ali Mazhar, J.:- This Cr. Jail Appeal No.72/2010 and Cr. Appeal No.78/2010 have been preferred by the appellants under section 48 of Control of Narcotic Substances Act, 1997 against their conviction and sentence awarded by Court of Sessions Judge/Special Judge for Control of Narcotic Substances, Kashmore in CNS Case No.16/2009 vide judgment dated 13.05.2010.
2. The brief facts of the case are that Excise Inspector Muhammad Ayub Buriro, PS Kashmore lodged crime No.03/2009 in which he stated as under:
“ On behalf of State, complaint is that today i.e. 14.10.09 I, E.IEPS Kashmore circle along with subordinate staff namely, E.C. Shahzad Ahmed, EC/ Muhammad Ibrahim, EC/ Bashir Ahmed, EC/ Bahoo Dasti, EC/ Inam Ali, on receiving spy information proceeded in Government vehicle. When reached at National Highway at Dera More near Sada Bahar Hotel Kashmore saw the pointed passenger Bus coming from province NWFP and Punjab side, which was singled and stopped. It was bearing registration K-1567 Peshawar, in which passengers were found. Driver and cleaner were got down from bus and asked their names and addresses. The driver disclosed his name to be Bacha Mir s/o Rozmen and cleaner disclosed his name to be Karamat Khan s/o Habib-ur-Rahman. In presence of two mashirs took personal search of driver Bacha Mir and from side pocket of his shirt found his photocopy of NIC and duplicate registration book bearing No.K-1567 Peshawar, showing Bakhat Ferosh as owner. On search of bus, complainant found double layered body beside passenger’s seat which was opened and found slabs of different colors, which were 110 slabs containing charas each slab was weighed separately at the spot. The weight of each slab was one kilogram total slabs weighed at 110 kilograms. Charas was put into six white plastic bags, 20 slabs weighing 20 kilograms were kept in each five bags and 10 slabs weighing 10 kilograms were kept in one bag. One slab from each bag was separated total six slabs were separated for chemical examination and remaining six plastic bags of charas were sealed at the spot. Thereafter passengers sitting in bus were allowed to proceed to their destination and accused were arrested and Bus No.K-1567 was taken into possession and mashirnama was prepared in presence of mashirs. Since the accused persons by possessing charas have committed offence u/s 6, 8 and 9 (c), hence lodging this FIR.”
3. Charge was framed against the present appellants on 23.01.2010. Prosecution had examined Muhammad Ayoub Buriro Excise Inspector who produced mashirnama of arrest and recovery, FIR, roznamcha entry and chemical report as Ex.5-A to 5-D and also examined EC Muhammad Ibrahim, mashir of arrest and recovery as Ex.6. Prosecution side was closed, thereafter, the statements of accused were recorded under Section 342 Cr.P.C. as Ex.8 and 9, in which both the accused had claimed to be falsely involved in the case.
4. The learned counsel for the appellants argued that the appellants have nothing to do with the alleged offence as both the appellants had categorically denied to be driver and cleaner of the bus. No independent witness/ passenger was associated with the investigation to prove the guilt of the appellants. He further argued that for the purposes of plying/ driving a bus, the driving license was necessary but no driving license was recovered from the possession of the appellants. Both the appellants were passengers and the actual driver and cleaner were let off and the prosecution with mala fide intention booked the appellants in the crime in question and involved the innocent persons. He further argued that the contraband material had been foisted upon the appellants. The learned counsel further argued that no independent witness was cited from the locality and all the witnesses are excise officials. It was further contended that there is a material contradiction about the number of passengers as Excise Inspector Muhammad Ayub stated in his deposition that there were about 35/40 passengers traveling in the bus while Excise Constable Muhammad Ibrahim deposed that there were 30/35 passengers. In support of his arguments, the learned counsel relied upon the following case law:-
1. PLD 1995 SC 516 (Nek Muhammad v. The State). In this case, the hon’ble Supreme Court held that mere recovery of contraband article from a place or a vehicle does not automatically connected an accused person with such article unless prosecution succeeds in showing that he had a conscious possession of the same. Accused were not proved to have any connection with the bus, either as the owner or driver or cleaner much less the possession of contraband heroin recovered from the body of the bus which was lying concealed in a cavity closed by means of bolts. Accused were acquitted in circumstances.
2. 1997 SCMR 543 (Zahoor Ahmad Awan v. The State). In this case, the hon’ble Supreme Court held that one accused was driving the truck while the other accused was sitting with him. No evidence was available on record to show that the accused were either the owners of the truck or of the heroin recovered from its secret places or that they knew about the concealment of the heroin in the truck. Mere presence of accused in the truck was not enough for their conviction in the absence of reliable evidence about transportation of the heroin by them.
3. 2007 SCMR 206 (Niaz-ud-din v. The State). In this case allegation against accused was that 5 kilograms of heroin was recovered from him. High Court upheld conviction of the accused and sentenced him to imprisonment for 10 years. Accused alleged that he was arrested prior registration of case and police wanted him to make a confession as to his involvement in the absence of drug trafficking of another person and on refusal of accused, he was falsely involved in the case. Admittedly, none of the prosecution witness had any enmity with the petitioner nor it was suggested. In absence of that there is no reason why he should be falsely implicated. Their statements remained consistent on all material particulars despite lengthy cross examination to which they were subjected. In these circumstances, no illegality found in the concurrent findings of the petitioner’s guilt. The conviction does not call for any interference however the petitioner was a previous non-convict and there was no instance of petitioner’s involvement in the drug trafficking and at the time of arrest he met custodial violence and received injuries. Perhaps those who arrested him wanted to extract confession for his alleged involvement with some other narcotic dealer therefore in these circumstances petitioner needs to be given a chance in his life to rehabilitate himself therefore the imprisonment of 10 years was reduced to 6 years.
4. 2011 SCMR 965 (Abdul Rehman v. The State). In this case, the counsel for the petitioner argued that he would not press the petition on merits and his only grievance was with regard to quantum of sentence. Prosecutor General in view of the fact that the petitioner was a first-time offender and not habitual criminal conceded to the reduction of sentence. No previous record of conviction of the petitioner in any offence was on record. Recovery effected was charas which was distinct from heroin. In the above circumstances, the hon’ble Supreme Court reduced the imprisonment to 5 years from 14 years.
5. Unreported judgment in Cr. Jail Appeal No.D-75 of 2010, (Saeed Khan and another v. The State). This Criminal Jail Appeal was decided by this bench while holding court at Sukkur bench of this court in which according to prosecution case, 240 Kgs charas was recovered from the above appellants and keeping in view the evidence led by the prosecution, the conviction of Saeed Khan being driver of truck was maintained, however under some mitigating circumstances, his life imprisonment was converted into 08 years sentence and another accused Ghulam Abbas was acquitted for the reasons that neither he was driver nor cleaner of the bus but he was given lift in the truck by the driver.
5. The learned DPG for the State argued that huge quantity of Charas was recovered from the possession of the appellants and it is presumed that both had the knowledge that contraband material was lying in the cavities of bus. He also referred to chemical report which shows that six Kg. sample of contraband material was sent for chemical examination and Chemical Examiner issued positive report. He further referred to statement of Basha Mir, one of the appellants recorded under Section 342 Cr.P.C, in which he stated that he wants to examine defence witness Muhammad Shareef. The learned DPG argued that Muhammad Shareef appeared as D.W.1 in the trial court and stated in his examination-in-chief that appellant Basha Mir was not driver of the bus but he is labour. The said D.W. had also produced his ticket at Exh.10/A. When he was cross-examined, he frankly admitted that his ticket was forged and he also stated that he will not repeat such mistake in future. The learned DPG supported the impugned judgment and concluded that both the appellants were rightly convicted.
6. It is clear from the deposition of Muhammad Ayub, Excise Inspector, who lodged the FIR that 110 KG charas was recovered from the cavities near to the passenger seats then he opened the inner side of the bus and from both sides of body of bus, he recovered 110 slabs of Charas, each slab was found one KG. He put 20 KG Charas in different plastic bags and then took one KG Charas from each plastic bag i.e. total six Kg. was separated. Thereafter, he sent six Kg. Charas in sealed condition through E.C. Shahzad Ahmed to the Chemical Examiner, Laboratory Rohri for chemical analysis. He also reiterated other facts which were mentioned in the FIR. In cross-examination, he admitted that one slab was taken from each bag for sending to the Chemical Examiner. He had sent a reference to know about the owner of the bus but Motor Registration Authority, Peshawar did not respond to his correspondence. He failed to produce driving license of accused Basha Mir. He further admitted that charas was concealed in both sides of vehicle except driver seat and last three seats. He asked the passengers to act as mashir in this case, but they refused. The next prosecution witness was Muhammad Ibrahim, E.C. Kashmore Circle, who deposed that he was made mashir and co-mashir was Shahzad Ahmed. From the personal search of accused Basha Mir, copy of NIC, duplicate registration book of the Bus No. K-1567 Peshawar in the name of Bakhat Ferosh was recovered. He further deposed that from the side of passengers, there were cavities attached with the body of the bus. He reiterated that one slab of one Kg. from each bag as sample was taken for chemical examination. In the cross-examination, he stated that there were about 40/45 seats in the bus and 30/35 passengers were sitting. Charas was recovered from the cavities of the body of the bus except from driving seat and last three seats of the bus. There were screws fitted in the body of the bus. He admitted that Excise Inspector did not call private persons to act as Mashir. He denied suggestion that both the accused were passengers in the bus.
7. So far as the plea of the learned counsel for the appellants that no private mashir or passenger from bus was associated or made witness is concerned, it is clearly provided under Section 25 of the Control of Narcotic Substances Act 1997 that for the purposes of search and arrest in the narcotic cases, the provision of Section 103 Cr.p.c is not applicable. Even otherwise, it is now well settled that police employees are the competent witnesses like any other independent witness and their testimony can not be discarded merely on the ground that they are police employees. Reference can be made to 2008 SCMR 1254.
8. The statements of prosecution witnesses remained constant on all material particulars despite lengthy cross-examination to which they were subjected. We have also seen the statement of D.W.-1 Muhammad Shareef, who had produced his ticket No.1789 along with his copy of NIC. Though in his examination-in-chief, he stated that he was going to Karachi from Peshawar in the same bus and accused Basha Mir was co-passenger. He further deposed that nothing was recovered from accused Basha Mir in his presence and he further stated that nothing was recovered from the bus in question. In support of appellant Basha Mir, he further stated that Basha Mir was not driver of the bus. The said D.W. was examined by DPP for the State, in which in very first question, he frankly admitted that his ticket was forged and he will not repeat such mistake in future and he further stated that he came to the court in defence of accused Basha Mir. Nothing came out from the defence witness which might help the appellant rather, he admitted in his cross examination that his ticket was forged which did not require any further cross examination. Primary duty of the prosecution is to prove the case against the accused beyond reasonable doubts, however after discharging its burden, if accused takes the plea in defence, it is statutory burden upon him under Section 29 of the Control of Narcotic Substances Act to discharge the same through cogent evidence. For ready reference and convenience, Section 29 of the Control of Narcotic Substances Act 1997 is reproduced 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 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.
9. The honorable Supreme court in the case of Muhammad Noor Vs. State (2010 SCMR 927), held 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 has enacted a provision in the shape of section 29 in the Act to shift the burden upon the accused disprove the possession once the prosecution proves that the accused was in possession of narcotic drug. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge. 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 make 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 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 the case of Inder Sain v. State of Punjab AIR 1973 SC 2309.
10. Keeping in view the evidence led by the prosecution, there is no hesitation in our mind to hold that appellant Basha Mir was driving bus and another appellant Karamat Khan was cleaner and Charas was also recovered from secret cavities of the bus. There is no doubt regarding the conscious possession and knowledge in this case. The case law relied upon by the learned counsel for the appellants reported in PLD 1995 SC 516 and 1997 SCMR 543 is distinguishable. Now next question is whether the entire contraband material was charas or not and or whether sample was sent for chemical examination from each slab or not. It is admitted position that according to prosecution story, 110 KG slabs of one Kg. were recovered from the secret cavities and each slab of one Kg. was separated from each bag for sending to the Chemical Examiner which shows that only six Kg. Charas was sent for chemical examination. Though the report of Chemical Examiner is positive but according to description of articles contained on parcel, six printed plastic pani packets, each containing one Kg. black brown color slab wrapped in plastic pani was sent. The honorable Supreme Court in case of Muhammad Hashim vs. State (PLJ 2004 SC 883) held that four grams of charas was taken out from total 288 rods and nothing was available on record to show whether sample for examination by Chemical Examiner was taken out from each rod to ascertain that 288 rods were of Charas or some other commodity. It was further held that in the Control of Narcotic Substances Act, 1997, stringent sentences have been provided if offences charged against the accused within any component of Section 09 are provided. Therefore, for such reason, Act 1997 has to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing proof like report of expert are to be followed strictly in the interest of justice, otherwise in such like cases it would be impossible to hold that total commodity recovered from his possession was charas. However, in given facts and circumstances of the case it would be presumed that sample was taken out from only one rod. As far as remaining rods are concerned, in absence of any sample taken out from them, it would not be possible to hold that there were the rods of Charas or otherwise. Taking into consideration this aspect, the case of prosecution was found doubtful, therefore, the appellant was acquitted by the honorable Supreme Court in the above case.
11. The word ‘possession’ had been used in the Control of Narcotic Substances Act, 1997 in wider sense so as to include transport, dispatch and delivery. Transportation within the country is also provided and finding relating to the ownership is not required. Though driver of the bus Basha Mir attempted to produce defence witness but defence witness while defending appellant Basha Mir, himself admitted that he produced forged ticket of bus to save the appellant. Neither defence counsel shattered the statement of prosecution witnesses in the cross-examination nor evidence of defence witness had any significance or helpful to prove the appellants innocent.
12. The learned full bench of Lahore High Court in case of Ghulam Murtaza vs. State (PLD 2009 Lahore 362), keeping in view the accumulated judicial wisdom and experience and balancing the same with the interests of justice in the overall social and economic context, compiled three different Charts/table of sentences punishable under Sections 9 (a), 9 (b) and 9 (c) of the Control of Narcotic Substances Act, 1997, which were approved and prescribed as normal and standard sentences of various contraband narcotic substances recovered, therefore, the learned counsel for the appellant argued that at the best, the appellant might have been convicted only for eight years in view of the above judgment as only six Kg. charas was proved.
13. It is clear beyond any shadow of doubt that only six slabs of charas of 01 Kg. each out of 110 slabs were sent for chemical examination and it was not ascertained that recovery of remaining slabs were of charas or some other commodity. Keeping in view the dictum laid down by the honorable Supreme Court in case of Muhammad Hashim (supra) and the judgment passed in case of Ghulam Murtaza vs. State (PLD 2009 Lahore 362) and our own judgment in Cr. Jail Appeal No. D-75 of 2010, authored by one of us (Shahid Anwar Bajwa-j) in which though conviction of Saeed Khan was upheld but quantum of his punishment was modified from life imprisonment to eight years imprisonment. In the case of Saeed Khan (supra), 240 packets of Charas of one KG each were recovered but only six KG was sent for chemical examination, for that reason, sentence of Saeed khan was modified and his life imprisonment was converted into imprisonment R.I. for eight years but sentence of Rs.1,00,000/= fine and imprisonment in case of default was maintained, therefore, in this case also ends of justice would be served if conviction is maintained but sentence is reduced.
14. As a result of this discussion, the conviction does not call for any interference. However, keeping in view the dictum laid down by the honorable Supreme Court, the judgment delivered by this bench in case of Saeed Khan and considering another aspect of the case that nothing was brought on record by the prosecution that the appellants are previously convicted or found previously involved in any narcotic cases as held in 2011 SCMR 965, the life imprisonment of the both the appellants is reduced to 08 years without any modification into quantum of fine. In case of default in the payment of fine, both appellants shall suffer S.I for six months more as already ordered by the learned trial court. However, both the appellants shall be entitled to the benefit of Section 382-B Cr.P.C.
The Appeals are disposed in the above terms.
Larkana
Dated: 20.1.2012 Judge
Judge