IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Jail Appeal No.D-63 of 2019

PRESENT:

Mr. Justice Naimatullah Phulpoto,

Mr. Justice Khadim Hussain Tunio,

Appellant : Suhbat Khan Pathan, through Mr. Altaf Hussain Surahio,

Advocte.

Respondent : The State, through Mr. Ali Anwar Kandhro, Addl. P.G.

Date of hearing : 14-09-2022.

Date of Judgment : 21-09-2022.

J U D G M E N T.

NAIMATULLAH PHULPOTO, J.- This appeal preferred by the appellant herein is directed against the impugned judgment dated 26.9.2019, passed by learned Additional Sessions Judge-I/MCTC, Jacobabad, in CNS Case No.10/2019, whereby the learned trial Court has convicted the appellant herein for offence u/s 9(c), Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment for life and to pay the fine of Rs.100,000/- (Rupees one lac) in case of default thereof to undergo simple imprisonment for one year more.

2/- Brief facts of the prosecution case as disclosed by the ASI Munir Hussain are that on 17.2.2019 he was posted as ASI at PS Saddar Jacobabad. On the same date he along with his police staff namely PCs Nazir Ahmed, Liaquat Ali, Shahbaz, Asghar Ali and HC Shabir Shah left police station vide Roznamcha entry No.11, at 1020 hours for patrolling duty. After patrolling different places when police party reached at Shambay Shah Bye-pass at 1130 hours, ASI received spy information that one datsun bearing No.CH-9811 carrying charas was approaching from Balouchistan side. On such information, ASI started checking of the vehicles. At about 1200 hours said datsun appeared from Balochistan side and it was stopped. Appellant was driving the same. ASI Munir Hussain enquired the name of the appellant/driver. He disclosed his name as Suhbat Khan son of Essa Khan by caste Pathan, resident of Chaman District Qila Abdullah Balochistan. ASI suspected narcotics in the datsun and checked the cavities of the datsun/dalla and found in the secret cavities packets of charas. Total packets were 100. Then police party opened each packet, which contained two slabs in each packet. There were total 200 slabs. ASI arranged digital scale through PC Nazir Ahmed and weighed the charas. Each packet was of 1000 grams, total 100 kilograms of charas. Each slab contained 500 grams charas. ASI separated two samples of 50 slabs in each parcel i.e. 25 K.Gs in each parcel and sealed the same separately and two parcels containing 50 slabs in each parcel containing 25 K.Gs in each parcel were sealed separately. Personal search of accused/appellant was also conducted, during which three currency notes of Rs.1000/-, total Rs.3000/- were recovered from the appellant in presence of mashirs. Mashirnama of arrest and recovery was prepared. Case property/samples were sealed separately at the spot.

3/- ASI Munir Hussain brought accused, case property/charas and datsun at the police station and lodged FIR against the accused on behalf of the State for offence u/s 9(c) of CNS Act, 1997; thereafter, handed over the custody of the accused, case property and vehicle to SIP Shabir Ahmed for investigation of the case. Investigation officer visited the place of wardhat in presence of the mashirs, sent the case property to the Chemical Examiner for chemical report and received positive report. On the conclusion of the investigation challan was submitted against the accused for offence u/s 9(c), CNS Act, 1997.

4/- Trail Court framed charge against the appellant for offence u/s 9(c), CNS Act, 1997 to which he pleaded ‘not guilty’ and claimed to be tried. In order to prove it’s case, prosecution examined as many as 04 witnesses and exhibited the mashirnama of arrest and recovery, FIR, Roznamcha entries and positive report of the Chemical Examiner. Trial Court recorded statement of the accused u/s 342, Cr.P.C, in which he denied the allegations and claimed false implication in this case. The accused/appellant examined none in his defence and also denied to examine himself on oath.

5/- Trial Court upon appreciation of oral as well as documentary evidence available on record, vide judgment dated 26.09.2019 convicted the appellant and sentenced him, as mentioned above, against which this appeal has been preferred by the appellant herein.

6/- Mr. Altaf Hussain Surahio, learned Advocate for the appellant, contended that it was a case of spy information, ASI Munir Hussain had sufficient time to call independent persons of the locality to make mashir in this case, but he deliberately avoided doing so, which created doubt in the case of prosecution; that safe custody and safe transmission of the charas to the Chemical Examiner was not established; that all the PWs are police officials, no private person from the vicinity was examined. In support of the contentions, reliance is placed upon the cases reported as Tariq Pervez v. The State (1995 SCMR 1345), State through Regional Director ANF v. Imam Bakhsh & others (2018 SCMR 2039) and Nasar ud Din v. The State (2021 YLR 457).

7/- On the other hand, Mr. Ali Anwar Kandhro, learned Addl. P.G., opposed the arguments of learned advocate for the appellant and submitted that the appellant was driving the vehicle at the time of incident, huge quantity of charas was recovered from the secret cavities of the vehicle and police officials had no motive to falsely implicate the appellant in this case. Learned Addl. P.G. further argued that prosecution succeeded to prove the safe transmission of the charas to the Chemical Examiner by examining PW-4 PC Shahzad (Ex.9). Prosecutor further argued that testimony of the police officials was as good as any other private witness unless it was proved that police officials had animus against the accused. In support of his submissions he relied upon the cases reported as Ajab Khan v. The State (2022 SCMR 317), Faisal Shahzad v. The State (2022 SCMR 905) and an unreported judgment of Hon’ble Supreme Court in the case of Muhammad Ayoub v. The State Criminal Petition No.1256/2020 dated 15.4.2022.

8/- We have heard learned Counsel for the parties and perused the evidence available on record.

9/- It is the case of prosecution that on spy information Datsun bearing registration No.CH-9811 was intercepted by ASI Munir Hussain along with subordinate staff on 17.2.2019, which was driven by appellant and on his pointation from the secret cavities 100 packets of charas, each packet containing two slabs, were recovered, total recovered charas was weighed and found to be 100 kilograms in shape of 200 slabs, out of which two samples of 50 slabs in each parcel i.e. 25 kilograms charas in each parcel was separately sealed for chemical analysis. In order to establish the charge against the appellant prosecution examined PW-1 complainant ASI Munir Hussain (Exh.6), PW-2 mashir Nazir Ahmed Naseerani (Exh.7), PW-3 SIP/I.O. Shabir Ahmed Sahto (Exh.8) and PW-4 PC Shahzad Hussain (Exh.9). ASI Munir Hussain clearly deposed that he was on patrolling duty along with his subordinate staff on 17.2.2019. He received spy information at 1200 hours Datsun driven by the appellant appeared on the road, it was intercepted and from the secret cavities of the Datsun on the pointation of the appellant, who was driving the vehicle at that time, 100 kilograms charas was recovered. Above-named ASI had prepared mashirnama in presence of the mashirs, namely, PC Nazir Ahmed and PC Liaquat Ali. Then he handed over the custody of the accused, case property, Datsun and mashirnama of arrest and recovery to the investigation officer, who recovered and deposited the charas in the Malkhana of the police station and investigation officer sent the charas to the Chemical Examiner. Mashir of recovery, namely, PC Nazir Ahmed has fully supported the recovery proceedings of the narcotics from the Datsun, weighing of the narcotics, preparation of the sample parcels and parcels of the remaining charas. ASI as well as mashir remained consistent on each and every material point and PC Shahzad Hussain who had taken charas from Malkhana to the Chemical Examiner, was also examined by the prosecution. Though they were cross-examined at length, but nothing favourable to the appellant came on record.

10/- So far the arguments of learned advocate for the appellant that safe custody of the alleged recovered narcotics and its safe transmission to the police station and then to the Chemical Examiner is not established, therefore, the same cannot be used against the appellant to sustain his conviction is concerned, it is the matter of the record that charas was recovered from the appellant’s vehicle on 17.2.2019, samples were separately sealed and the samples were sent through PC Shahzad Hussain to the Chemical Examiner. Chemical report is produced before the trial Court, which shows that samples were received by Chemical Examiner in sealed packets. Roznamcha entries have also been produced. This fact was confirmed and testified by PC Shahzad Hussain, who had taken the samples to the office of the Chemical Examiner on the second day. The report of the Chemical Examiner also testified this fact, therefore, it can safely be said that safe chain of the custody of the recovered charas was not compromised at all. All the relevant roznamcha entries have been produced before the trial Court. Therefore, we hold that trial Court rightly appreciated the evidence and came to the conclusion that prosecution had established safe custody and safe transmission of the sample parcels to the concerned laboratory and report of the Chemical Examiner also contains test carried out in the result, which corroborates the statements of the prosecution witnesses. Learned prosecutor rightly relied upon on the point of safe custody the judgment of Hon’ble Supreme Court in the case of Muhammad Ayoub v. The State in Criminal Petition No.1256/2020 dated 15.4.2022. The relevant portion is reproduced as under:-

“So far argument of the learned counsel regarding safe custody and safe transmission is concerned, Syed Salman, SI(PW-3) made statement that he kept the case property in the Malkhana in safe custody. He also produced the relevant record i.e. entry in Register No.19 and got exhibited the same. He also confirmed that on 15.04.2013 he deposited the sample parcels in the concerned laboratory intact and received receipt from the said laboratory which was also produced in the Court. He categorically stated that the parcels were handed over to him on 13.4.2013 whereas on 14.04.2013 it was Sunday and on 15.04.2013, he deposited the said sample parcels to the concerned laboratory. The report of chemical examiner confirms that it was Syed Salman, SI who deposited the sample parcels in the said office. It is also a circumstance that it was not suggested to this witness that he has not deposited the sample parcels in the concerned laboratory and that he made a false statement in the Court. So the prosecution also established the safe custody and safe transmission of the sample parcels to the concerned laboratory and the report of chemical examiner also contains tests carried out and their results, which corroborates the statement of prosecution witnesses. So the prosecution has established its case against the petitioner beyond any reasonable doubt.”

It is also argued that all the PWs are police officials and their evidence required independent corroboration, as accused has claimed false implication in this case. It is settled law that testimony of the police officials is as good as any other private witness unless it is proved that they have any animus against the accused. However, no such malafide on the part of the police officials could be brought on record by the appellant in this case. It is also observed that reluctance of the general public to become a witness/mashir in such like cases has become judicially recognized fact and there is no way-out to consider statement of the official witnesses, as no legal bar/restriction has been imposed in such regard. Police officials are as good as any other person and can be relied upon. In this case, evidence of the police officials remained un-shattered during cross-examination. Defence plea has been raised that the appellant belongs to Balochistan. He was busy in labour at Jacobabad. Police arrested him and snatched cash of Rs.30,000/- and falsely implicated him in this case. According to this case, the appellant belongs to Balochistan. Case has been registered against him at Jacobabad. He has admitted the case of prosecution to the extent that he was arrested from Jacobabad. In the present case, a huge quantity of charas was recovered from the vehicle of the appellant, who was driving it at the time of incident. It is quite difficult for the police to foist such huge quantity of narcotics. It was duty and obligation of the accused to prove the specific plea taken by him in defence in terms of Article 121 of Qanoon-e-Shahadat Order, 1984, but appellant had failed to prove the plea that he was doing labour at Jacobabad at that time. Appellant had also failed to examine the witnesses in his defence to substantiate such plea. Trial Court rightly disbelieved such plea while holding that it was afterthought. Even in the statement recorded u/s 342, Cr.P.C. accused did not agitate the plea that he was doing labour and was taken away on the day of his arrest from his working place. Prosecution succeeded to prove its case on its salient features, then trial Court rightly on close analysis came to the conclusion that prosecution proved its case against the appellant.

11/- As regards the contention of learned Counsel for the appellant regarding overwriting in the timings of mashirnama of arrest and recovery is concerned, at the top of the mashirnama there is no overwriting, but in the body of the mashirnama in the timing 1130 there is some overwriting, but we agree with the trial Court that it was not fatal to the case of prosecution. It is settled principle of law that minor contradictions or improvements in the prosecution evidence are to be overlooked. However, only material contradictions or overwriting are to be considered. Learned advocate for the appellant failed to point out that the overwriting was made dishonestly. Moreover, prosecution had not taken any benefit from such overwriting, therefore, contention of defence Counsel is without merit. Prosecution has succeeded to prove it’s case against the appellant.

12/- From the re-assessment of evidence, we are of the opinion that appellant/driver cannot be absolved from the responsibility of transporting charas, as held in the case of Ghulam Qadir v. The State (PLD 2006 SC 61).

13/- Trial Court after appraisal of evidence rightly came to the conclusion that prosecution had established it’s case against the appellant and found him guilty. We have re-examined and reappreciated the prosecution evidence and are not able to take different view and came to the conclusion that the trial Court has rightly found the appellant guilty to the charge. Hence, the conviction and sentence recorded by trial Court vide judgment dated 26.09.2019 are hereby maintained. Appeal is without merit and the same is dismissed.

JUDGE

Qazi Tahir PA/*