JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal.No.D-53 of 2018.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

 Mr. Justice Irshad Ali Shah,

 Mr. Justice Shamsuddin Abbasi,

For hearing of main case.

27.10.2021

 

                        Mr. Altaf Hussain Surhio, Advocate for the appellant.

Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.

 

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IRSHAD ALI SHAH, J;- It is case of prosecution that the appellant was found carrying with him in his Bus 25 K.Gs of Charas in shape of 25 patties duly packed in a bag, by Excise Inspector Aamir Khan of DIO Camp, Kashmore, for that he was booked and reported upon.

2.        The appellant denied the charge and prosecution to prove it, examined Complainant Excise Inspector Aamir Khan and PW/Mashir E.C Ashique Ali and produced through them the relevant documents and then closed its side.

3.        The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence by inter-alia stating that he and other drivers were apprehended by the excise police and they were let off after acceptance of bribe, while he was involved in this case falsely by the excise police on account of his failure to pay bribe. However, none was examined by the appellant in his defence or himself on oath to prove his innocence in terms of Sub Section (2) of Section 342 Cr.PC.

4.        On evaluation of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as is detailed therein.

5.        It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the excise police; there is no independent witness to the incident; the person who took the samples to the chemical examiner has not been examined by the prosecution to prove its safe transmission and report of chemical examiner lacks compliance of Rule 6 of Control of Narcotics Substance (Government Analysts) Rules, 2001; E.C Luqman being author of mashirnama of arrest and recovery etc; has not been examined by the prosecution and the complainant himself has conducted the investigation of the case, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt. In support of his contention, he relied upon cases of Tariq Pervez Vs. The State (1995 SCMR-1345) 2). Kamran Shah & others Vs. The State (2019 SCMR-1217) and 3). The State through Regional Director ANF Sukkur Vs. Imam Bakhsh & others (2018 SCMR-2039).

6.        Learned Addl.P.G for the State by supporting the impugned judgment has prayed for dismissal of the instant jail appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt. In support of his contentions, he relied upon cases of Shazia Bibi Vs. The State (2020 SCMR-460) and Mushtaq Ahmed Vs. The State and another (2020 SCMR-474).       

7.        We have considered the above arguments and perused the record.

8.        It is settled by now that if the case of transportation or possession of “Narcotics Substance” is proved, then technicalities of procedural nature are to be overlooked.

9.        In case of Ismaeel Vs. The State (2010 SCMR-27), it has been held by the Honourable Apex Court that;

“…. It is now settled proposition of law by flex of time that in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands otherwise proved the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding procedural defects as observed by this Court in Munawar Hussain’s case 1993 SCMR-785.”

 

10.      In case like present one, the prosecution has only to show by evidence that the accused had dealt with the “Narcotic Substance” or has physical possession over it, or is directly concerned with it, then presumption would be that he has committed such offence unless he proves otherwise.

11.      In case of Muhammad Noor and others Vs. The State
(
2010 SCMR-927),
it has been observed by the Hon’ble Apex Court that;

“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 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 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 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 cases of Inder Sain v. State of Punjab (AIR 1973 SC-2309)”.

12.      In the instant case, it is inter-alia stated by complainant Excise Inspector Aamir Khan and PW/Mashir E.C Ahsique Ali that on 12.10.2017, they with rest of the Excise police personnel, when were performing their duty at Excise Check Post adjacent to Sada Bahar Hotel, Indus Highway road at Kashmore, there at about 05.30 A.M, they found coming a Bus from Punjab side, it was signaled to stop, from its last seat, was secured a bag, which was owned by the appellant being driver of said Bus and on search from it was secured 25 packets of Charas, each one was weighed to be 01 K.G, making total of 25 K.Gs, from each packet of Charas was taken out 200 grams of Charas for chemical analysis, Charas secured and separated then were sealed at the spot, a mashirnama of arrest and recovery was prepared at the spot and the appellant with the recovery so made from him was taken to Excise DIO Camp Kashmore, there he was booked formally in the present case and after usual investigation, was challaned. They have stood by their version, on all material points with regard to recovery of Charas from the appellant, despite lengthy cross examination. No doubt, there is no independent witness to the incident but for this reason, the complainant and his witnesses could not be disbelieved only for the reason that they are police officials. Indeed, they are good witnesses as others and were having no ill-will or grudge against the appellant to have involved him in this case falsely with remote chance of foisting huge quantity of narcotic substance against him. No doubt, certain documents relating to investigation of the present case have been written/prepared by E.C Luqman, but all this was done by him, as has come on record, at the dictation of complainant. By such act, no prejudice is caused to the appellant. The samples of narcotics substance have been subjected to chemical examination within shortest possible time to its recovery baring intervening holidays, and there was no allegation of its substitution and/or tempering with it, therefore, examination of E.C Javed Ahmed, who took the same to chemical examiner, was hardly required. If the appellant was having a feeling that the samples of Charas have not been analyzed in accordance with procedure set by law, then he ought to have called for examination of the Chemical Examiner to solicit specific details, which he has failed to call for no obvious reason, therefore, he could not be permitted to challenge the report of Chemical Examiner in appeal to be illegal having not been issued in accordance with law. Obviously, it fulfills requirement of law to large extent. No rule, procedure or law has been pointed out by learned counsel for the appellant, which could have prevented the complainant from conducting the investigation of the case of like nature himself. Needless to say that much of the investigation of the case of like nature stands completed on arrest of the accused with recovery of Narcotics Substance. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

13.      In case of Mushtaq Ahmad Vs. The State and another (2020 SCMR-474), it has been held by the Honourable Apex Court that;

 Prosecution case is hinged upon the statements of Aamir Masood, TSI (PW-2) and Abid Hussain, 336-C      (PW-3); being officials of the Republic, they do not seem to have an axe to grind against the petitioner, intercepted at a public place during routine search. Contraband, considerable in quantity, cannot be possibly foisted to fabricate a fake charge, that too, without any apparent reason; while furnishing evidence, both the witnesses remained throughout consistent and confidence inspiring”.

14.      The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Tariq Pervez (supra), it was held that single circumstance creating doubt is sufficient to make the accused entitled to such benefit. In the instant matter, no circumstance is apparent which could have made the appellant entitled to such benefit. In case of Kamran Shah and others (supra), the acquittal of the accused was recorded mainly for the reason that he was passenger in the vehicle, which was being driven by the co-convict. In the instant matter, the appellant was found driving the vehicle himself and he claimed ownership over the bag containing Charas. In case of The State through Regional Director ANF Sukkur (supra), the acquittal appeals were dismissed by the Honourable Apex Court. In the instant matter, no acquittal is recorded.

15.      The appellant has failed to establish prima facie mis/non- reading of evidence brought on record by the prosecution or failure on part of the learned trial Court in following the settled principle of law for appreciation of evidence. Thus, the learned trial Court has rightly found the appellant to be guilty of the above said offence. Consequently, the instant appeal fails and is dismissed accordingly.

                                                                                                      JUDGE

 

                                                                                  JUDGE

.