IN THE HIGH
COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Appeal
No.D-118 of 2006.
PRESENT
Mr.
Justice Khawaja Naveed
Ahmed,
Mr.
Justice Ghulam Dastgir A. Shahani,
Appellants Abdul Manan and
Abdul Jabbar Kakar through Messrs Mazhar Ali Siddiqui and
Abdul Baqi Jan Kakar,
advocates.
Respondent The State
through Mr. Nisar Ahmed G Abro
State Counsel.
Date
of hearing : 24.4.2008. Date of Judgment : 24.4.2008.
Appellants are produced in custody.
Excise Inspector Munawar
Ali Pechuho is present in person.
J U D G M E
N T.
KHAWAJA NAVEED AHMED, J.-
This appeal has been filed by appellants Abdul Manan
and Abdul Jabbar, both by caste Kakar,
who have been convicted vide judgment, dated 23.11.2006, by the learned
Sessions Judge/Special Judge, Kamber-Shahdadkot, in
case/F.I.R No.2/2004 of Excise D.I.O, Larkana, for
offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, and
sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/=, and
in default thereof they shall undergo R.I for six months more, with benefit of
Section 382-B, Cr.P.C.
2. Brief facts of the prosecution case are
that during patrolling by Excise Police party headed by Excise Inspector Munawar Ali Pechuho on 15.1.2004
at 11.15 p.m., they reached at Waggan Bus Stop and
started checking the suspected vehicles.
The prosecution case is that a passenger coach coming from Larkana side was stopped, two passengers were found sitting
in suspicious condition. Enquiries were
made from them. They disclosed their
names as Abdul Manan son of Habibullah
Khan Kakar, and Abdul Jabbar
son of Abdul Qayyum Kakar,
both resident of Taluka and
District Ziarat, Balochistan. From the personal search of Abdul Manan Rs.500/= cash, N.I.C, and ticket of the vehicle were
recovered, while from Abdul Jabbar only Rs.200/= cash, two N.I.Cs and ticket of the vehicle were recovered. It is the case of prosecution that upon
interrogation both the accused disclosed that four bags/bajkas
belonging to them were lying on the roof of the vehicle. The bags were brought down and opened in
presence of mashirs.
Each bag was containing 29 Kilograms of poppy (Dodi). The total weight of four bags was 116
Kilograms. Samples were drawn and sent
for Chemical Examiner’s report. It is
stated that first report given by Chemical Examiner,
“CHEMICAL TESTS FOR OPIUM CONTENTS”
Test For Meconic Acid: Traces____
Test for Suphuric Acid Traces____
Test for Poppy heads Traces____
Test for Alkaloids ____________
1. Morphine ________Traces________
2.
Codeine ________Traces________”
3. There
is another report from Chemical Examiner, Rohri,
which appears from pages 57 to 61. These
are the negative reports and these reports say that packets 1, 2, 3 and 4 do
not contain material of poppy (Dodi).
4. Prosecution
in support of its case has examined P.W-1 Munawar Ali
Pechuho and P.W-2 Ali Ahmed and closed its side. P.W-2 Ali Ahmed is a constable of Excise
Department and is subordinate of Munawar Ali.
5. We
have called both the appellants from jail and have heard them alongwith their advocates at length. Appellant Abdul Jabbar
has said that he is a school teacher at Ziarat for last
fourteen years prior to his arrest and he was coming from Ziarat,
while he was arrested in this case. The
investigating officer has shown only Rs.200/= cash recovered from his
pocket. Appellant Abdul Jabbar states that he had Rs.9000/= in his pocket. All the money has been eaten up by Excise
Inspector Munawar Ali. Munawar Ali, who is
also present in Court, has been confronted with this statement of
appellant. He denies having recovered
Rs.9000/= from the pocket of appellant Abdul Jabbar. He categorically states that only Rs.200/=
were recovered from his pocket. We are
not ready to believe this. During these
days no one would travel from Ziarat Balochistan to Karachi Sindh
having only Rs.200/= in his pocket.
Similarly, Abdul Manan says that he had Rs.50,000/= in his pocket.
Investigating officer has shown only Rs.500/= in his pocket at the time
of his arrest. The mobile phone of Abdul
Manan has also not been shown in the mashirnama. This
state of affairs on the part of prosecution agency of Excise Department is
deplorable and needs enquiry by their superiors to check this type of crime by
their own officers while they are discharging their duties. We have noticed the practice that ‘jama talashi’ (personal search)
property is often misappropriated at police stations and the poor litigants are
deprived of their personal belongings like mobile phones, wrist watches, finger
rings, driving licences and other valuable
documents. The system needs improvement
and strict vigilance and instructions by the superior officers in this
regard. These misappropriations on the
part of prosecution agencies give bad reflection in respect of the entire
department and working of prosecution agencies.
We expect improvements in this regard and positive actions from the
superior officers.
6. The
learned advocates appearing for the appellants in this case have relied upon
two cases, one is Criminal Appeal No.D-103/2002, decided by the Division Bench
of this Court, comprising of Mr. Justice Zia Parvez (as he then was) and Mr. Justice Nadeem
Azhar Siddiqi. The relevant portion is reproduced hereunder :-
“All
the learned Counsel have also agreed that in the
report of the chemical examiner in present case only traces are detected. Consequently the goods would only involve the
psychotropic to a maximum concentration of 1 percent of opium on extraction
only. Proceeding on the basis of the
aforesaid principle and taking the maximum limit into consideration even of one
percent, morphine found in the poppy heads is less than 10 grams per K.G. From the entire quantity recovered weighing
90 K.Gs. the weight of opium would at the most come
to 0.90 K.Gs (after extraction) in the light of the
report of chemical examiner, dated 1.4.2000 being the quantity of actual opium
contained in the offending substance.
The quantity of psychotropic substance on the basis of actual
concentration being less than 1 K.G would make this case to fall under the
provision of Section 9(b) of the Control of Narcotic Substances Act, 1997. The other findings being sustainable and
taking into consideration that the appellants have been in custody since their
arrest from 11.4.2000 we would convert the sentence from Section 9(c) to 9(b)
of Control of Narcotic Substances Act, 1997 and sentence the appellant to a
term of R.I already undergone. The
sentence of fine is set aside.
With
the above observations/modification in the sentence, the appeal is disposed
of. The appellants may be released
forthwith if not required in any other case.”
7. The
other authority relied upon is reported as Mumtaz Ali
v. The State (2005 P.Cr.L.J 643).
This is a bail matter. It has
been referred only because the Chemical Examiner had given report regarding
traces of Charas in the substances examined by
him. The Chemical Examiner, who was
called in the Court in that case, had explained that traces means that there is
less than one per cent of Charas in the substance
examined/exited.
8. On
the point of exclusive possession, the learned Counsel relied upon a Division
Bench judgment reported as Minhaj v.
The State (2004 P.Cr.L.J 1992), in which the
facts were almost similar as of the present case. The relevant portion is
reproduced hereunder :-
“6. According
to the prosecution story, the accused was traveling in the Bus. Although there is no evidence on the file
regarding the other passengers in the Bus, but being a public transport, which
admittedly does not belong to the appellant, it does not require much
imagination to conclude that there would have been passengers in the Bus. Both the I.O. and the marginal witness stated
that the narcotics were recovered from the roof top of the bus. They also alleged that the appellant was
caught hold of on account of suspicion and it was he who owned the
narcotics. The testimony of the two
witnesses regarding the disclosure of the appellant of ownership of the narcotics, is inadmissible in evidence for two reasons. Firstly, the same is hearsay and secondly the
statement made by an accused to the police cannot be proved, much less an oral
statement. The narcotics were recovered
from the roof top of the bus and there is no evidence whatsoever to show that
the same belonged to the appellant.
Neither the cleaner nor the bus driver had been examined in support of
allegation that the bundles from which the narcotics were recovered, were owned
by the appellant.”
9. Another
authority relied upon by the learned Counsel is Hakim Ali v. The State reported
in 2001 P.Cr.L.J
1865. On the point of sending parcel
for re-examination to Chemical Examiner,
10. The
learned Counsel have also relied upon the case of Ali Hassan v. The State reported in PLD 2001 Karachi-369. The relevant portion is reproduced
hereunder:-
“6. In
the evidence of the prosecution witnesses examined, Mr. Soomro
has pointed out some contradictions.
Some of them are, of course, material.
The complainant/I.O Qurban Ali said that under
his dictation Mashirnama was prepared by Inspector Razi Khan. Mashir Muhammad Ibrahim, the only
other witness, stated that Mashirnama was prepared by
the complainant in his own handwriting.
One of the two prosecution witnesses is definitely telling lie and
Inspector Razi Khan has not been examined. One of the two prosecution witnesses is,
thus, unreliable but he may be either of the two. This renders the whole prosecution case
doubtful. The accused/appellant cannot
be deprived of the benefit of this doubt.
The counsel for the State, also, does not support the conviction.”
11. Mr.
Nisar Ahmed G. Abro,
learned State Counsel, has fully supported the impugned judgment and states
that huge quantity of poppy has been recovered, which
is covered by the definition of narcotics and is punishable under Section 9(c)
of the Control of Narcotic Substances Act, 1997. He states that the accused have been rightly
convicted and appeal is liable to be dismissed.
12. We
have heard the learned Counsel for the appellants, the learned State Counsel alongwith Excise Inspector/I.O Munawar
Ali Pechuho, who conducted the raid and recovered the
property.
13. From
the perusal of the record we find this a case of insufficient evidence as the
investigating officer himself is a complainant, and his subordinate constable
is the only witness in this case. No
third witness was either examined or produced in the Court. The bus driver and cleaner, who were the
natural witnesses of recovery have neither been examined by the I.O, nor
produced in the Court. The variation in
the reports of Chemical Examiners is very disturbing and alarming. Samples drawn from the same recovery were
sent to Chemical Examiner, Rohri. His report is negative. Another report, which is suspected to have
been sent by Chemical Examiner,
14. Copy
of this judgment be sent to Chief Secretary, Sindh, in order to bring in his knowledge inefficiency/the
conduct of the subordinate officers of Excise and Taxation Department (Narcotic
Wing) and for appropriate action on his part.
JUDGE
JUDGE