IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Jail Appeal No.D-7 of 2015

Present:-

Mr. Justice Aqeel Ahmed Abbasi,J

Mr. Justice ShahnawazTariq,J

Mr. Amanullah Advocate for appellant

Mr. Zulfiqar Ali Jatoi DPG for the State

Date of Hearing : 25.02.2016.

Date of judgment : 25.02.2016

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JUDGMENT

SHAHNAWAZ TARIQ,J:-Through captioned criminal jail appeal, appellant Nazar Mohammad has impugned judgment dated 14.01.2015, passed by the Court of learned Sessions Judge/Special Judge (CNS) Ghotki, in Special Case No.42 of 2012,Re- The State v. Nazar Mohammad, whereby appellant was convicted and sentenced for imprisonment for life and fine of Rs.100,000/-, and in case of default to further undergo S.I. 3 months. However, benefit under section 382-B,Cr.P.C. was also extended.

2. Relevant facts spelt out from instant appeal are that on 19.10.2012, complainant Excise Inspector Zulfiqar Ali Shaikhreceived spy information regarding transportation of huge quantity of Chars by Truck No.TKB-351. Complainant along with sub-ordinate staff started snap checking at National Highway. At 2.30 p.m., complainant intercepted said Truck and on enquiry, driver disclosed his name to be Nazar Mohammad S/o Haji Hayat Khan. Complainant conducted personal search of the driver in presence of mashirs namely E.C Mashooque Ali and E.C Mohammad Dawood and secured Rs.5000/-, CNIC and a driving licence from front pocket of his shirt. Driver disclosed that Truck was unloaded. On search of the truck, secret cavities were found in bottom of rear portion of Truck. On opening of cavities, 120 plastic packets were found which were containing patties of Chars. Each packet was separately weighed which came one Kg each, and in all recovered Chars became 120 Kg. 100/100 grams of Chars were separated from each packet, and wrapped in a white paper and sealed as sample for Chemical Analyzer, while remaining packets were kept in six plastic bortas, and each borta was filled with 20 packets. On further search of the Truck from its dash board, a registration book of said Truck was recovered, which was in the name of Abdul Baqi S/o Sultan Muhammad. Such mashirnama of arrest and recovery was prepared at the spot. Subsequently,samples were sent to the Chemical Analyzer for examination, and per report recovered substance was declared Chars. Appellant was tried for an offence punishable under section 9-C of CNS Act, 1997, and ultimately, was convicted by learned trial Court vide impugned judgment.

3. We have heard learned counsel for appellant and learned DPG for the State and scanned the material available on record properly.

4. Learned Counsel for appellant contended thatappellant is innocent and has been falsely implicated in instant crime as complainant had released the real culprit and foisted Chars upon him; that prosecution had examined the complainant and one mashir, while co-mashirwas given-up during the trial, as such prosecution had withheld the material evidence; that complainant himself had investigated the crime which shows the malafide on the part of the complainant that he was so interest in the case; that there is delay of four hours in lodging of F.I.R. for which no satisfactory explanation was given by the complainant; that at the time of recovery no independent witness was associated by complainant though traffic was available at National Highway; thatcomplainant after separation of samples, had not sealed each sample separately, which has created serious doubt, hence appellant may be acquitted from the charge by extending benefit of doubt.Learned Counsel for appellant relied on PLD 2004 Karachi 644, PLD 2012 SC 380, PLD 2005 Karachi 128.

5. While controverting the above submissions, learned D.P.G. contended that the delay in lodgment of F.I.R. has already been explained by the PWs that they consumed hours at the spot for checking of packets and completion of further formalities; that appellant has failed to point out any ill-will on the part of the complainant for involving him in a case of recovery of huge quantity of narcotics; that complainant being a competent police officer can investigate the case; that representative samples were sealed separately, hence remaining substance was not sent for chemical examination. Learned D.P.G. relied on 2008 SCMR 1254, 2010 SCMR 927, 2007 SCMR 1519 and NLR 2001 (Crl) 05.

6. We have heard arguments advanced by learned counsel for the parties supported with case law and considered the material available on record prudently.

7. Perusal of record emanates that prosecution case is based on the evidence of complainant Excise Inspector Zulfiqar Ali Shaikh and mashir Excise Constable Mashooque Ali supported by the Chemical Analyzer’s report. Both witnesses have narrated the similar facts of the case including snap checking, arrest of appellant and recovery of 120 kg Chars from the secret cavities raped in 120 packets weighing 1 Kg each. PWshave also deposed details of the incident in same line and fully supported the averments of F.I.R. and mashirnama of arrest and recovery as well as corroborated the evidence of each other. PWs had also identified case property as well as appellant to be the same, and during their lengthy cross examination, defence has failed to shatter the authenticity of their evidence, thus their testimony remained unshaken. Indeed, on the fateful day, appellant alone was apprehended while plying unloaded Truck No.TKB-351, at National Highway and from his personal search his driving licence, CNIC and some cash were recovered by the complainant. It is well settled that provisions of section 103 Cr.P.C. for association two public persons, is not applicable in cases of recovery of narcotics from a moving vehicle on Highway. Section 25 of CNS Act, 1997, has excluded the provisions of section 103 Cr.P.C. but simultaneously, it places heavy responsibility upon the prosecution to adduce solid evidence to maintain the transparency of the recovery which could eliminate all possibilities of false implication of any innocent person. In the case of Muhammad Khan v. The State(2008 SCMR 1616), the honourable Supreme Court has observed that police witnesses are as good and respectable as other public witnesses and their statements cannot be discarded merely for the reason that they are the police employees. In the case of Zafar v. The State (2008 SCMR 1254), the honourable Supreme Court has observed that police employees are competent witnesses like another independent witness and their testimony cannot be discarded merely on the ground that they are police officials; Applicability of S.103 Cr.P.C in Narcotic case has been excluded U/s 25 of Control of Narcotics Substance Act, 1997; Non- inclusion of any private witness is not a serious defect to vitiate the case; Appeal was dismissed.

8. In present appeal, defence has also failed to point out any kind of animosity or ulterior motives on the part of complainant regarding the false involvement of appellant in instant crime and foisting of huge quantity of Chars, thus the recovery effected from accused would neither become doubtful nor lose its evidentiary value merely on the grounds that PWs are police officials and no public person was associated as mashir at the event of recovery of narcotics from the possession of accused. Mere assertion of accused that he had been involved falsely in narcotics case, in absence of any tangible evidence, was of no consequence nor it created any doubt about the recovery of narcotics.For the contention raised by appellant is that the real culprit was released by the complainant,it is an admitted fact that appellant had neither moved any application to the higher authorities by disclosing the name of actual culprit allegedly released by the complainant nor made any complaint for transfer of the investigation to any other Investigating Officer nor such application was moved before the trial Court, thus appellant was bound to establish the defence plea agitated by him by adducing tangible evidence and such allegation in absence of sound evidence, could not be considered in view of Article 121 of Qanun-e- Shahadat,1984. In the case of Anwar Shamim and another v. The State (2010 SCMR1791), the honourable Supreme Court has observed that it is duty and obligation of accused to prove the plea taken by him in his defence in term of Article 121 of Qanun-e-Shahadat, 1984. More so, Section 29 of Control of Narcotics Substance Act, 1997, cast burden upon the accused to establish his innocence and absolve himself from the allegations of recovered substance, while prosecution has only to show by evidence that accused was in physical custody or directly concerned with recovered narcotics substance. In the case of Mohammad Noor and others v. The State (2010 SCMR 927), the honourable Supreme Court has held that prosecution, has only to show by evidence that accused has dealt with Narcotics Substance or has physical custody of it or directly concerned with it, unless accused proves by preponderance of probability that he did not knowingly or consciously possess the articles; without such proof, accused can be held guilty by virtue of Section 29 of Control of Narcotics Substance Act, 1997. Chars weighing 268 Kg was recovered from secret cavities of vehicle; accused who was driving the vehicle and also in possession of the Article whatever lying in it; allegation against co-accused was that on his information secret cavities of vehicle were opened and Chars was secured; Co-accused was in knowledge of availability of secret cavities; therefore, he was also involved in the case along with driver; Supreme Court declined to interfere in the conviction and sentence awarded to both the accused was maintained.

9. Conversely, complainant took separate representative samples from recovered 120 packets of narcotics substance which is corroborated by Chemical Analyzer’s report dated 24.10.2012,which reflects that 120 sealed paper packets weighing 100 grams each, were received for chemical examination, and said substance was declared as Chars. In the case of Hameed Zaid v. The State (PLD 2012 SC 380), the honourable Supreme Court had observed that sample taken of a recovered substance must of bea representative sample of the entire recovered substances;If no sample is taken from any particular packet/cake/slab or if different samples taken from different packet/cake/slab are not kept separately for their separate analysis by Chemical Examiner, then the sample would not be representative sample and it would be unsafe to rely on mere word of mouth of prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance.In present case, complainant had taken separate samples from all packets in view of the above referred case law.

10. So far as the contention raised regarding conducting of investigation by the complainant himself, it is well settled that complaint being a Police Officer was competent to investigate the case if he was witness of offence,and suchrecovery could not be defeatedmerely on the ground that the complainant and the Investigating Officer was a same police officer, if no malafide was established against the said complainant. In the case of Zafar v. State (supra), the honourable Supreme Court has observed that plea raised by accused that complainant himself was Investigating Officer and all prosecution witnesses were officials of Anti-Narcotic Force, police Officer was not prohibited under the law to be a complainant, if he was a witness of an offence.

11. Next contention raised by the appellant that prosecution has withheld material evidence as co-mashir Excise Constable Muhammad Dawood was not examined, it is well-settled that it is prerogative of the prosecution to pick and choose any witness to be examined or not during the trial and due to non-examination of any witness no adverse inference can be drawn against prosecution. In the case of Zahoor Ahmed v. The State (2007 SCMR 1519), the honourable Supreme Court has observed that it was not essential for the prosecution to produce each of the cited witness at the trial. In the case of Sarfraz alias Sapi and 2 others v. The State (NLR 2001 Criminal 5), the honourable Supreme Court has observed that failure by prosecution to produce independent witness would not warrant adverse inference against prosecution; Law governing administration of criminal justice has not cast a duty upon prosecution to produce all the witnesses who have seen incident because it is the quality of the evidence but not quantity which matters;of course, this object can be achieved by recording evidence even of one witness if he is trustworthy.

12. Moreover, complainant and mashir examined by prosecution have satisfactorily furnished explanation for the delay of 4 hours in the lodgment of F.I.R., as they had consumed 3.30 hours in checking of 120 packets and completion of other formalities, thus delay in the lodgment of F.I.R. would not to be fatal to the recovery of narcotics from accused, whilePWs have fully supported the case of prosecution and they have deposed same facts and events and defence has failed to shake and shatter the authenticity of their testimonies, thus minor contradictions or improvements would not be fatal to the prosecution case. In the case Anwar Shamim(supra), the honourable Supreme Court has observed that minor contradictions or improvements in statements of witnesses are to be over-looked, however, only material contradictions are to be considered.

13. Considering the above facts and circumstances, we are of the view that prosecution has prima facie succeeded to bring the guilt of accused at home and appellant has failed to point out any material illegality or serious infirmity committed by the trial Court or non-reading of the evidence while passing impugned judgment, which does not call for any interference, hence same stands maintained. Consequently, instant criminaljail appeal stands dismissed being devoid of any legal substance.

These are the detailed reasons for the short order dated 25.02.2016, whereby instant criminalappeal was dismissed by us.

JUDGE

Ihsan