JUDGMENT SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
Criminal Appeal No.D-400 of 2010
Date of hearing: 19.02.2013.
Date of decision 19.02.2013
Appellant : Mir Nawaz s/o Habib Gul and Zar Ghulam s/o Awal sher through Mr. Nandan A. Kella Advocate.
Respondent : The State through Mr. Syed Meeral Shah Deputy Prosecutor General Sindh
J U D G M E N T.
AFTAB AHMED GORAR,J- The appellants were tried by the learned Special Judge C.N.S Shaheed Benazirabad and were convicted u/s 9-C of Control of Narcotic Substances Act, 1997 to suffer imprisonment for life and to pay fine of Rs.200,000/-, in default whereof, to suffer R.I. for six months. They were also given benefit of section 382-B Cr.P.C.
2. Brief facts of the prosecution case are that on 18.11.2009 3.00 a.m. Excise police during checking at Excise Check Post National Highway near Sakrand stopped a truck, apprehended the appellants there-from and recovered 49 packets of charas one kilogram each total 49 Kilograms from the secret cavity of the Truck. The police also recovered Rs.3000/- from accused Mir Nawaz and Rs.1000/, original NIC from accused Zar Ghulam in presence of mashirs EC Shah Nawaz and EC Muhammad Azeem. Complainant brought the accused and property at police station and registered case u/s 9-C of C.N.S Act, 1997.
3. Formal charge was framed against the appellants at Ex.7, to which they did not plead guilty and claimed to be tried vide their pleas at Ex.8 and 9.
4. In order to prove its case, prosecution examined in all two witnesses i.e. P.W.1 complainant EI Athar Hussain Khoso at Ex.10, who produced mashirnama at Ex.10/A, FIR at Ex.10/B, attested Photostat copies of roznamcha entries at Ex.10/C and 10/D and chemical report at Ex.10/E. P.W.2 mashir EC Shah Nawaz was examined at Ex.11. Thereafter prosecution closed its side vide statement at Ex.12.
5. The statements of accused were recorded u/s 342 Cr.P.C at Ex.13 and 14 respectively, wherein they denied the prosecution allegations and pleaded their innocence. However, neither they examined themselves on oath nor led any defence evidence. Appellant Mir Nawaz further stated that he is not a driver and is blind from his left eye by birth.
6. The learned trial court after hearing the parties and appraising the evidence convicted the appellant as mentioned above.
7. Learned counsel for the appellants argued that the appellants are innocent and been falsely been implicated in the present case. He submitted that neither the appellants were owners of the Truck in question nor they were in knowledge about the material kept in the secret cavity thereof. He further contended the main culprit was the owner of the Truck namely Gulzar but the Excise police did not arrest him and shown him as absconder; description of alleged charas was not mentioned in the mashirnama. Learned counsel added that there are material contradictions between the evidence of the P.Ws, therefore, prosecution has failed to prove its charge against the appellants. He further contended that complainant stated that EC Sabir Ali prepared the mashirnama and consumed two hours in entire proceedings while the mashir EC Shahnawaz stated that the complainant wrote the mashirnama; complainant stated that EC Sabir Ali wrote the mashirnama but said Sabir Ali was neither cited as witness in the challan nor examined by the prosecution at the trial. Learned counsel urged that FIR shows the time of alleged occurrence as 3.00 a.m and the mashir stated that mashrinama was written at 3.00 a.m. which appears to be doubtful. Learned counsel further argued that the Excise police officials are good witnesses as others but they should be reliable. Learned counsel further submitted that the appellants were traveling in a Bus and their Bus became out of order at Bypass Sakrand, therefore, they were sitting at nearby hotel, from where they were arrested and charas was foisted upon them. Learned counsel submitted that evidence of the P.Ws does not appear to be confidence inspiring and the case is full of doubts. Learned counsel argued that both the appellants are old aged of about 65 years and have been convicted in a false case. He contended that it is well settled law that if a single circumstance creates doubt, its benefit must be extended to the accused as a matter of right. In support of his arguments, learned counsel has relied upon the case of Gul Amin Vs. The State (2007 P Cr. L j 483), Shahzada Vs. The State (2010 SCMR 841), Mushtaque Vs. The State (2002 P Cr. L J 1312) and Samiullah Vs. The State and another (2012 P Cr. L J 1477).
8. On the other hand, learned Deputy Prosecutor General Sindh supported the impugned Judgment and argued that prosecution has proved its case beyond shadow of doubt, therefore they have rightly been convicted by the trial court. According to him, the learned counsel for the appellant has pointed out minor contradictions, which cannot be considered in favour of the appellant in presence of strong and unimpeachable evidence against them.
9. We have heard the learned counsel for the parties and examined the record carefully. The prosecution witnesses i.e. the complainant and mashir of the arrest and recovery have supported the prosecution case by deposing on oath that they got the truck stopped and arrested both the appellants from it. They further deposed that during search of the truck, they recovered 49 packets which became 49 Kilograms and that such mashirnama was prepared at the spot and signed by the mashirs. They did not differ from each other in respect of place of incident, time of occurrence, manner of incident, arrest of the accused and recovery of narcotic substance from the accused persons. So far, the contradictions pointed out by the learned counsel for the appellant are concerned, in our view these are minor and are not fatal to the prosecution case. During the course of cross examination, learned defence counsel could not shatter the evidence of the P.Ws and they remained on their line. Learned counsel for the appellants contended that the appellants did not possess the driving license is not so material since they were apprehended from the truck in which large quantity of charas was kept in the secret cavity, therefore, it is unbelievable that the appellants who were taking the truck were not in the knowledge of the material kept therein. Section 6 of Control of Narcotic Substances Act prohibits production, manufacturing, preparation and possession or transport any narcotic substance and section 9 provides punishment for violation of section 6 of the Act. The appellants were apprehended on the spot alognwith 49 kilograms, out of which 100 grams were separated from each packet and were sent for chemical examiner on the same day and the report of the Chemical Examiner is in positive.
10. The contention of the appellants that they were traveling in the Bus and due to defect in the Bus, they got down at Bypass Sakrand is not believable as neither they have stated so in their statements u/s 342 Cr.P.C nor produced any ticket to prove their traveling in the Bus at the relevant time. Both the P.Ws supported the prosecution case and there appear no infirmity in their evidence. The appellants also did not bring anything on record to show any enmity or ill will on the part of the prosecution witnesses to falsely implicate them and foist such large quantity of the charas upon them. So far the age of the appellants as pointed out by the learned counsel is concerned, same is immaterial if the charge against them has been proved regarding possession and transportation of narcotic substance in huge quantity. We, are clear in our mind that the prosecution was able to prove its charge against the appellants beyond shadow of doubt, therefore, their conviction by the learned trial court does not suffer from any illegality or infirmity.
11. In the case of Gul Amin Vs. The State (supra) it was held that no credible evidence was on record to connect the accused with the commission of offence and prosecution had even failed to disclose any connection of the accused either with the motorcar; from which contraband charas and opium were recovered either as its owner or driver or in any other capacity or with the ownership of contraband charas and opium and they were acquitted. While in the present case, both the appellants were available in the truck in which contraband charas was lying and they were arrested at the spot and charas was recovered from the secret cavity of the Truck. Hence credible evidence has been brought against them. Thus this case law is not applicable to the present case.
In the case of Shahzada Vs. The State (supra), driver of the car had escaped from the Diggi of which 180 kilograms of charas and one kilogram opium were secured by the police. In the present case one of the appellant was driving the truck and they both were arrested and charas was recovered from the secret cavity of the Truck.
In the case of Mushtaque Vs. The State (supra), mere presence of accused at the time of occurrence as passenger with co-accused in the vehicle in question without any knowledge that any contraband was lying in vehicle could not be made basis for conviction of accused. However in the present case the appellants were not the passengers, therefore, this case is not helpful to the appellants.
In the case of Samiullah Vs. The State (supra), appeal against acquittal of one accused, who was father of main co-accused was dismissed with observation that mere presence of accused in the truck would not be sufficient to involve him unless conspiracy or abetment of the offence was shown and proved that the case of accused was distinguishable from the case of main accused. No such situation exists in the present case.
12. For the foregoing reasons, we are of the considered view that there is no ground to interfere in the impugned Judgment and the appeal merits no consideration, which stands dismissed.
13. This appeal was dismissed vide our short order dated 19.02.2013 and these are the reasons thereof.
JUDGE.
JUDGE
A.K