IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.
Criminal Jail Appeal No. D–17 of 2019
Before:
Mr. Justice Irshad Ali Shah,
Mr. Justice Arbab Ali Hakro.
Appellants: 1). Muhammad Ali s/o Muhammad Hanif Longo Baloch.
2). Mardan s/o Muhammad Hayat Longo Brohi
Through M/S. Irfan Badar Abbasi and Sarfraz Khan Jatoi, Advocates.
The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 17-05-2023.
Date of decision: 17-05-2023.
JUDGMENT
IRSHAD ALI SHAH, J. It is the case of prosecution that the appellants were found transporting through their Car 19 K.Gs of Charas and 25 K.Gs of Opium, for that they were booked and reported upon by police. The appellants denied the charge and prosecution to prove the same examined complainant Inspector Ahmed Nawaz and PW/Mashir ASI Nawab Khan then closed its side. The appellants in their statements recorded under Section 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that they at the relevant time were taken from Coach when were going to Karachi then were involved in this case by the police by foisting upon them the narcotics substance; they did not examine anyone in their defence or themselves on oath to disprove the charge against them. On conclusion of trial, they were convicted Under Section 9 (c) of CNS Act, 1997 and sentenced to undergo imprisonment for life and to pay fine of Rs.100,000/- each and in default whereof, to undergo simple imprisonment for one year with benefit of Section 382-B Cr.PC, by learned 1st Additional Sessions/Special Judge for CNS/MCTC, Kandhkot, vide judgment dated 02.04.2019, which they have impugned before this Court by preferring the instant Criminal Jail Appeal.
2. It is contended by learned counsel for the appellant Muhammad Ali that he being innocent has been involved in this case falsely by the police by substituting him with the real culprit; there is no independent witness to the incident; none has been examined by the prosecution to prove safe custody and transmission of the narcotics substance; the ownership of the Car has not been ascertained and evidence of the PWs being inconsistent with regard to the scale used for weighing the narcotics substance has been believed by learned trial Court without lawful justification, therefore, he is entitled to his acquittal by extending him benefit of doubt. In support of his contentions, he relied upon case of Mst.Sakina Ramzan Vs. The State (2021 SCMR-451).
3. It is contended by learned counsel for appellant Mardan that he was a passenger; therefore, he was having no concern with the Car or substance recovered therefrom. By contending so, he sought for his acquittal by extending him benefit of doubt. In support of his contention, he relied upon unreported order dated 07.11.2022 passed by this Court in Crl.Appeals Nos.D-46 and 47/2019.
4. Learned Additional P.G for the State by supporting the impugned judgment has sought for dismissal of the instant Criminal Appeal by contending that the prosecution has been able to prove its case against the appellants beyond shadow of doubt which is supported in shape of recovery of huge quantity of narcotics substance. In support of his contentions, he relied upon cases 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.
5. Heard arguments and perused the record.
6. It was inter-alia stated by Complainant Inspector Ahmed Nawaz and PW/Mashir ASI Nawab Khan that on the date of incident, they with rest of the police personnel were conducting patrol, during course whereof, they were intimated by spy that Charas is being transported through a Car coming from Kashmore side; on such information, they went at Rano Picket, hold Nakabandi there, during course whereof they found coming the pointed Car; it was made to stop; on its’ driver seat was found sitting appellant Muhammad Ali; on its’ back seat was found sitting appellant Mardan; on search under iron sheet of their Car were secured 19 K.Gs of Charas and 25 K.Gs of Opium in shape of packets; as per memo 500 grams of Charas was drawn in sample from 18 packets of Charas with complete packet, total 10 K.Gs while 500 grams of Opium from each packet of Opium, total of 12 ½ K.Gs for purpose of chemical examination; substance so secured and separated then was sealed under memo prepared at the spot; the appellants with recovery so made from them were taken to P.S Buxapur, there they were booked in the present case formally. It was further stated by the complainant that on investigation, he recorded 161 Cr.PC statements of the witnesses, dispatched the samples of the Charas and Opium to the Chemical Examiner which returned with positive report and then submitted challan of the case against the appellants before the Court having jurisdiction. Both of them have stood by their version on all material points with regard to the arrest of the appellants and recovery of narcotics substance made from them which they were found transporting through their Car, despite lengthy cross examination excepting minor contradiction with regard to the weighing scale being digital or manual, which appears to be immaterial in the circumstances; therefore, 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 appellants to have involved them in this case falsely by substituting them with the real culprits of the incident; the substitution of the innocent person with the real culprits, even otherwise, is a rare phenomenon. No allegation is leveled by the appellants at trial with regard to narcotics substance secured from them to have been tampered with. It is true that the ownership of the Car involved in commission of the incident has not been ascertained but such fact too is not enough to make a conclusion that the appellants are innocent by disbelieving the recovery of huge quantity of narcotics substance from them. The appellants have failed to examine anyone in their defence or themselves on oath in disproof of the prosecution’s allegation. In that situation, plea of innocence on their part deserves to be ignored as an afterthought. The prosecution obviously has been able to prove its case against the appellants beyond shadow of doubt and they have rightly been convicted for the same.
7. 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”.
8. 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)”
9. 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”.
10. 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 chain of custody of narcotics substance was found to have been compromised on account of non examination of Superintendent Preventive Services, who actually wrote the letter to Chemical Examiner. In the instant case, complainant himself has written letter to Chemical Examiner. In unreported order of this Court, one of the accused was acquitted for the reason that cogent evidence was brought on record which was suggesting him to be cleaner of the vehicle. In the instant case, the Car was not passenger vehicle and nothing was suggested to any of the witness at trial that appellant Mardan was sitting therein as passenger.
11. In view of facts and reasons discussed above, it is concluded safely that no illegality, misreading or non reading of the evidence is found, which may justify this Court to make interference with the impugned judgment. Consequently, the instant Criminal Jail Appeal fails and is dismissed accordingly. JUDGE
JUDGE