HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.90 of 2012
Present: Sajjad Ali Shah, J.
Naimatullah Phulpoto, J.
Appellant: Khan Muhammad through Mr.
Zahid Hussain, Advocate
Respondent: The State through Mr. Khadim Hussain
Khuharo, Deputy Prosecutor General Sindh.
Date of hearing: 17.04.2013
JUDGMENT
NAIMATULLAH
PHULPOTO,J.-
Appellant Khan
Muhammad along with Zafar and Niaz
Muhammad was tried by learned Judge CNS Larkana in
Crime No.02/2010 registered at Excise Police Station Larkana
under section 9(c) of the Control of Narcotics Substances Act, 1997. After
trial appellant Khan Muhammad was convicted under section 9(c) of Control of
Narcotics Substances Act, 1997 and sentenced to imprisonment for life and to
pay fine of Rs.300,000/- and in case of default to suffer S.I. for two years
more. However, benefit of section 382-B Cr.PC was extended to the appellant.
The co-accused Zaffar and Niaz
Muhammad were acquitted by judgment dated 05.01.2012. Appellant Khan Muhammad
has filed the appeal. By this judgment we dispose of the aforesaid appeal.
2. Brief facts
of the prosecution case has disclosed in the F.I.R. are that on 28.05.2010 Munawar Ali Pechuho, the
Assistant Excise & Taxation Officer (A.E.T.O), Larkana,
on spy information, along with subordinate staff namely, E.J. Ali Ahmed, E.Cs Wajid Ali, Muhammad Tariq, Majid
Ali and Sajid Ali proceeded to the Commerce College
near new Bus Stand Rato Dero/Larkana Road where after a while they noticed a mini-truck,
appeared on road from Rato Dero
side. Excise officials signaled and got it stopped and found three persons
including its driver sitting in it. Mini-truck had registration No.LSC-1533.
Excise officials got all the three persons down and inquired about their names
and addresses whereupon driver disclosed his name as Khan Muhammad son of Abdul
Karim Qalandrani Brohi resident of Saryab Road
Quetta, while the remaining co-accused namely Zaffar
son of Ameer Bux Qalandrani Brohi and Niaz Muhammad son of Din Muhammad Sarprah
Brohi, both residents of Muhammadpur
Odho, Taluka Garhi Khairo, District Jacobabad.
Their personal search was conducted in presence of mashirs namely E.J. Ali
Ahmed and Wajid Ali. During search, from the pocket
of Khan Muhammad cash of Rs.2000/- was recovered and cash of Rs.500/- was
recovered from accused Zaffar. Nothing was recovered from
the personal search of acquitted accused Niaz
Muhammad. On the search of vehicle registration documents in the name of
Muhammad Mithal son of Dost Muhammad were secured
while in its rear portion paddy fodder was loaded. On checking of said paddy
fodder 95 plastic bundles containing charas were found/detected, which was
concealed under paddy fodder. All the bundles were weighed by complainant in
presence of mashirs and found to be one kilogram each, total of 95 kilograms,
out of them 15 bundles/kilograms were separated and put in one sack and sealed
separately for sending to chemical examiner for report. All the three accused
were arrested, such mashirnama
was prepared in presence of mashirs E.J. Ali Ahmed
and E.C. Wajid Ali. Accused, case property and
mini-truck were bought to the police station where a case bearing Crime
No.02/2010 was lodged on behalf of the State under section 9(c) of the Control
of Narcotics Substances Act, 1997.
3. After
registration of F.I.R., 161 Cr.PC statements of the prosecution witnesses were
recorded and the samples were dispatched to the Chemical Examiner Rohri for analysis and report. On the conclusion of the
investigation challan was submitted against the accused under section 9(c) of
the Control of Narcotics Substances Act, 1997.
4. Learned trial
Court framed the charge against the appellants at Ex-2. Appellant pleaded not
guilty and claimed trial. At the trial, prosecution examined A.E.T.O. Munawar Ali Pechuho at Ex-10, who
produced Roznamcha entry at Ex-10/A, mashirnama of arrest/recovery at Ex-10/B,
F.I.R. at Ex-10/C, positive chemical report at Ex-10/D and mashir E.J. Ali
Muhammad at Ex-11. Thereafter prosecution side was closed.
5. Statements of
the appellant/accused Khan Muhammad and acquitted accused were recorded under
section 342 Cr.PC in which he denied the prosecution allegations and stated
that real culprits were let off by the Excise police and he has been falsely
implicated in this case. Owner of the truck namely Mithal
is the co-villager of E.J. Ali Ahmed. He further stated that positive chemical
report has been managed. Appellant did not examine himself on oath nor produced
any witness in his defence.
6. After
assessment of evidence, trial Court convicted the appellant and sentenced as
stated above, co-accused were acquitted mainly for the following reasons:
“Having
held that the prosecution has proved the charge of recovery of 15 Kgs. of charas beyond the shadow of doubt, the question
remaining to be determined was the individual culpability of each accused. In
this context, if we reexamine the material available on record, it would be
noticed that both the witnesses have categorically deposed and so was mentioned
in the F.I.R. and the mashirnama as well that it was accused Khan Muhammad
resident of Saryab road Quetta who was found driving
the truck in question at the relevant time. Thus, he being in possession and
charge of the truck would be responsible for the recovery made from it while no
connection of the remaining two accused namely Zafar
and Niaz Muhammad has been established by the
prosecution with the said truck. It was not at all alleged that either of them
was the cleaner or helper on the said truck. On the contrary, both of them were
shown to be residents of district Jacobabad and it was quite possible that they
may have taken the ride in the truck on way and in any case in absence of
direct evidence, they could not be saddled with the conscious knowledge of
charas in the truck which had been concealed under the fodder. Thus, only accused
Khan Muhammad is held responsible for the recovery who is convicted under
section 9(c) of C.N.S. Act, 1997 and bearing in mind the quantity of charas
being over 10(ten) K.Gs, he is sentenced to imprisonment for lime and to pay
fine of Rs.300,000/- (three lacs)
and in its’ default, to suffer simple imprisonment for 2(two) years more. He is
however, extended the benefit of Section 382-B Cr.PC.”
7. Mr. Zahir Hussain, learned counsel
for the appellant contended that in this case co-accused have been acquitted by
the trial Court on the same set of evidence. Prosecution case against the
appellant was doubtful. He has further submitted that it was the case of spy
information but no efforts were made by the complainant/I.O. to call private
persons to witness the recovery proceedings. Learned Advocate for the appellant
argued that there are major contradictions on the point of route/way by which
Excise officials had proceeded to the pointed place. He has submitted that one
prosecution witness has stated that they had proceeded from Rice Canal and
another witness has stated from school side. Learned advocate for the appellant
has also argued that charge was defective and proceedings are vitiated. No
driving license was recovered from the appellant. Charas has been foisted upon
the appellant by Excise officials. Appellant is entitled for acquittal.
8. Mr. Khadim Hussain Khuharo,
learned Deputy Prosecutor General Sindh argued that appellant was driver of the
mini-truck, he was the sole responsible for the commission of offence. Non-recovery
of driving license would not cause dent to prosecution case. Regarding
contradictions he replied that there was no major contradiction in the evidence
of prosecution witnesses on any material point. He argued that some error in
framing of the charge would not be fatal for the prosecution case as no
prejudice was caused to the appellant during trial. Lastly he has argued that
excise officials and mashirs had no enmity whatsoever with the appellant to
falsely implicate him in this case and to foist the huge quantity of charas
upon him. Mr. Khuharo argued that case of acquitted
accused was not identical to appellant. He has fully supported the judgment of
the trial Court.
9. We have
minutely examined the prosecution evidence. Complainant A.E.T.O. at Ex-I, he has
clearly deposed that on 28.05.2010 after receipt of spy information he along
with his subordinate staff proceeded to the commerce college near new bus-stand
Ratodero/Larkana where saw
a mini-truck in question on road having registration No.LSC-1533 and three
persons including driver were sitting in it. They were got down from the truck.
Appellant, who was driving the mini-truck, on enquiry disclosed his name as
Khan Muhammad son of Abdul Karim Qalandrani
Brohi resident of Saryab
Road Quetta, while the remaining acquitted co-accused namely Zaffar son of Ameer Bux Qalandrani Brohi and Niaz Muhammad son of
Din Muhammad Sarprah Brohi,
both residents of Muhammadpur Odho,
Taluka Garhi Khairo, District Jacobabad. Personal search of the
appellant Khan Muhammad was conducted and cash of Rs.2000/- was recovered from
his pocket. Registration documents of the mini-truck were recovered from truck,
which were in the name of Muhammad Mithal son of Dost
Muhammad. Mini truck was loaded with paddy fodder. On checking of said paddy
fodder 95 plastic bundles containing charas were found/detected, which was
concealed under it. All the bundles were weighed by complainant in presence of
mashirs and found to be of one kilogram each, total of 95 kilograms out of them
15 bundles/kilograms were separated for sample and put in one sack and sealed
separately. All the three accused were arrested, such mashirnama was prepared in presence of mashirs
E.J. Ali Ahmed and E.C. Wajid Ali. Accused, case
property and mini-truck were bought to the police station where a case bearing
Crime No.02/2010 was lodged on behalf of the State under section 9(c) of the
Control of Narcotics Substances Act, 1997. On the following day i.e. 29.05.2010
samples were sent to the Chemical Examiner Rohri for
analysis. He was lengthy cross-examined by the defence counsel but nothing favourable to the appellant came on record, however, the
complainant had denied that he had mala fidely
investigated the case. Mashirs E.J. Ali Ahmed has also fully supported the
version of the complainant/I.O. and deposed that appellant and two accused were
arrested while appellant was driving the truck in question and 95 bundles of
charas were recovered in his present, out of which 15 bundles were separated
and sealed separately and sent to the Chemical Examiner Rohri.
He was also cross-examined at length by the defence counsel. He has denied the
suggestion that he was deposing falsely.
10 We have
carefully scrutinized/examined the prosecution evidence. Evidence of both the
prosecution witnesses was consistent on material points. Some
variations/discrepancies have been pointed out by the learned defence counsel
with regard to the mode of recovery, such variations in statements of
prosecution witnesses were not material to affect the case of prosecution
adversely, the same were to be ignored particularly in
narcotics cases by Courts. Statement of the witnesses had to be read as a
whole. From perusal of evidence of prosecution witnesses it transpires that PWs
had no enmity or motive against the appellant. Even in the statement of the
appellant recorded under section 342 Cr.PC nothing substantial has been brought
on record to discard the prosecution evidence. Evidence of prosecution witness
is fully corroborated by the positive chemical report as in this case samples
were promptly sent to the Chemical Examiner for analysis. Contention of learned
defence counsel that both the prosecution witnesses examined belonged to the
Excise Department and private persons have not been examined. In the Narcotic cases
application of section 103 Cr.PC requiring recovery in presence of local
persons has been excluded under section 25 of the Control of Narcotics
Substances Act, 1997. Appellant, who was driving the mini-truck, was
responsible regarding the narcotics being carried in his vehicle,
he cannot be absolved from his responsibility of transportation of contraband
items in the vehicle. In the case of Kashif Amir versus the State (PLD 2010
Supreme Court 1052) the Honourable Supreme Court has been pleased to
observe as under:
“It
is well settled principle that a person who is 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 section 9(b) of
CNSA that the possession should be an exclusive one and can be joint one with
two or more persons. Further, 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.”
Error in framing of charge as pointed out by learned
advocate for appellant was not in respect of particulars required to be stated
in the charge as such accused was not mislead by such error or omission. Thus,
omission has not occasioned a failure of justice. Such error would not be fatal
in this case. Honourable Supreme Court in the case of Ghulam Qadir versus The State (PLD 2006 Supreme Court 61)
has observed that “Courts in such like cases are supposed to dispose of the
matter with dynamic approach instead of acquitting drug peddlers on
technicalities.” Therefore, such
contention is without any substance. Under section 29(d) of the Control of
Narcotics Substances Act, 1997 unless otherwise proved, presumption would be
that an accused has committed an offence under this Act in respect of any
material which undergone any process towards production or manufacture of the
narcotics, drug psychotropic substance or controlled substance of any residue
left of the materials from which a narcotic drug, psychotropic substance or
controlled substance has been produced or manufactured for the possession of
which he fails to account satisfactorily. Presence of appellant being a driver
in the vehicle is not denied as it is evident from evidence available on
record. Inasmuch as recovery of charas from the truck, being driven by appellant,
is established by confidence inspiring evidence. The drivers of vehicles
invariably raise the plea of having no knowledge when narcotics or other
contraband items are recovered from their possession.
11. We also see no
force in the contention of the learned Advocate for the appellant that
co-accused namely Zaffar and Niaz
Muhammad have been acquitted by the trial Court on the same set of evidence for
the reasons that case of the appellant was distinguishable. It was not the case
of the prosecution that acquitted accused were either cleaner or helper of the
said truck, on the contrary both of them have been shown to be residents of
District Jacobabad, no narcotic was recovered from their possession. Learned trial Court has assigned sound reasons while acquitting the
co-accused. The prosecution has brought on record evidence against the
appellant that he was driving the mini-truck at the time of his arrest and
recovery of narcotics from his vehicle. Chemical report was also positive,
appellant being driver of truck was sole responsible for transportation of
narcotics and the trial Court has rightly appreciated the evidence and found
the appellant guilty to the charge. We, therefore, find no merit in the above
appeal, the same is dismissed.
12. These are the
reasons for our short order announced in open Court on 17.04.2013.
JUDGE
JUDGE
Gulsher/PA