IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Jail Appeal No. D – 103 of 2018

Before;

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Irshad Ali Shah.

Appellant: Deen Muhammad alias Deeno son of Noor Muhammad alias Nooro bycaste Mirani

(Now confined in Central Jail Khairpur)

Through Mr. Arif Ali Abbasi, Advocate.

The State: Through Mr. Zulfiquar Ali Jatoi, Additional Prosecutor General, Sindh.

Date of hearing: 09-02-2023.

Date of decision: 09-02-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is the case of the prosecution that on arrest from the appellant was secured 15 KG of charas by Police party of PS Rohri, for that he was booked and reported upon. On conclusion of trial, he was convicted u/s 9 (C) of CNS Act, 1997 and sentenced to undergo Rigorous Imprisonment for life and to pay fine of Rs. 100,000/- (One lac) and in default whereof, to undergo Simple Imprisonment for 01 year with benefit of section 382-B Cr.P.C by learned Sessions Judge/ Special Judge (CNS), Sukkur vide judgment dated 04-09-2018, which is impugned by the appellant before this Court by way of instant Crl. Jail Appeal.

2. It is contended by learned counsel for the appellant that appellant being innocent has been involved in this case falsely by the police at the instance of his rivals; there is no independent witness to the incident; the case property has been subject to Chemical Examination with the delay of about 09 days and evidence of the PWs being doubtful in its character has been believed by learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contention he has relied upon cases of Mst. Sakina Ramzan Vs. The State (2021 SCMR 451) and Kamran Shah and another Vs. The State and others (2019 SCMR 1217).

3. Learned Additional P.G for the State has sought for dismissal of the instant Crl. Jail Appeal by supporting the impugned judgment by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt. In support of his contention, he has relied upon the case of Liaquat Ali and others Vs. The State (2022 SCMR 1097) and unreported order dated 28-10-2021 passed by Hon’ble Apex Court in Crl. Appeal No. 46-P/2014 Re. Ajab Khan Vs. The State.

4. Heard arguments and perused the record.

5. It is stated by complainant SIP Aijaz Ali that on 19-07-2016 he with his staff was conducting patrol when reached at Kandhra Octroi Post there he came to know through spy information that a person is sitting for selling charas at Bandar Wall adjacent to abandoned Raja Patrol Pump at Old National Highway. On such information he with his staff went at the pointed place, there found the appellant sitting by the side of sack, who after seeing the police party jumped from the wall and fell down. He was apprehended, the sack which he was having was secured, it was found containing 15 slabs of charas, each one was weighed to be 1000 grams, total 15000 grams, from each slab, was taken 100 grams of charas for Chemical Examination, such memo was prepared, the appellant with the recovery so made was taken to PS Rohri, there he was booked in the present case formally and further investigation was conducted by I.O/Inspector Jahangir. Evidence of the complainant is taking support from evidence of PW/mashir ASI Muhammad Murad. It was stated by I.O/ Inspector Jahangir that on investigation he recorded 161 Cr.P.C statements of the PWs and then dispatched the charas to Chemical Examiner. In order to prove the safe transmission of samples of charas to Chemical Examiner, PW/PC Ali Nawaz was examined by the prosecution. The complainant and his witnesses have stood by their version on all material points with regard to the arrest of the appellant and recovery of Charas from him, despite lengthy cross examination; they could not be disbelieved only for the reason that they are police officials; they indeed were having no enmity or ill will with the appellant to have involved him in this case falsely at the instance of his rivals. No doubt the samples of the charas have been dispatched to the Chemical Examiner with the delay of about 09 days, but such delay is not found to be fatal to the case of prosecution for the reason that no allegation of tempering with such sample of charas has been same made by the appellant at trial. The appellant during course of his examination u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence by stating that there exists old enmity between Mirani’s and Lakhan’s tribes, he being Mirani was apprehended by Lakhan tribe persons, they maltreated him and then got him involved in this case falsely through police. On being asked, whether the appellant has ever been accused, witness or complainant in any of the case, which is lodged by Mirani’s or Lakhan’s tribes people against each other, the reply by learned counsel for the appellant was in negative. Not only this, the appellant has failed to examine him on oath in disproof of the prosecution’s allegation against him or anyone else in his defence to prove his innocence. In that situation plea of innocence taken by the appellant for his involvement in this case at the instance of Lakhan tribe people deserves to be ignored as an afterthought. The prosecution obviously has been able to prove its case against the appellant beyond shadow of doubt with remote chance of foistation of Charas upon him by leading trustworthy and cogent evidence, which is strongly supported in shape of recovery of charas from the appellant.

6. In case of Zafar Vs. The State (2008 SCMR-1254), it has been held by the Honourable Apex Court that;

“---S. 9(c)---Evidence of police officials---Competence---Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees”.

7. In case of Muhammad Noor and others Vs. The State
(2010 SCMR-927), it has been held by the Honourable 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 cases of Inder Sain v. State of Punajb (AIR 1973 SC-2309)”

8. In case of Kashif Amir Vs. The State (PLD 2010 SC-1052), it has been held by the Honourable Court that;

“---S. 9(c)---Transportation of narcotics---Driver of the vehicle to be responsible---Person on driving seat of the vehicle shall be held responsible for transportation of the narcotics, having knowledge of the same, as no condition or qualification has been made in S.9(6) of the Control of Narcotics Substances Act, 1997, that the possession should be an exclusive one and can be joint one with two or more persons---When a person is driving the vehicle, he is incharge of the same and it would be under his control and possession, hence whatever articles lying in it would be under his control and possession”.

9. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstance. In case of Mst. Sakina Ramzan (supra) the case chain of custody was found to have been compromised. In the instant case chain of custody of the Charas and transmission of the samples whereof has not been found to have been compromised. In case of Kamran Shah (Supra) the constable who has taken the sample to the Chemical Examiner was not examined by the prosecution. In the instant case, PC Ali Nawaz, who has taken the samples of charas to Chemical Examiner has been examined.

10. In view of the facts and reasons discussed above, it is concluded safely that no case for interference with the impugned judgment is made out by this Court, by way of instant Crl. Jail Appeal, it is dismissed accordingly.

J U D G E

Nasim/P.A