THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.196 of 2015

Before:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants: Liaquat Ali and Shad Muhammad through Mr. Muhammad Ashraf Kazi, Advocate

Respondent: The State through Mr. Zafar Ahmed Khan, Additional Prosecutor General Sindh

Date of hearing: 01.11.2016

Date of announcement: 16.11.2016

J U D G M E N T

NAIMATULLAH PHULPOTO, J: Liaquat Ali and Shad Muhammad were tried by learned Special Judge for (CNS) Naushahro Feroze, in Special Case No.52 of 2013 under section 9(c) of the Control of Narcotic Substances Act, 1997. The appellants were found guilty. By judgment dated 04.08.2015, accused were convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life and to pay the fine of Rs.500,000/- each. In case of default in payment of fine, they were was ordered to suffer SI one year more. Benefit of Section 382-B, Cr.P.C was extended to them. The appellants have challenged the impugned judgment through instant appeal.

2. The brief facts of the prosecution case as disclosed in the F.I.R. are that on 04.11.2013 SIP Khadim Hussain Buledi was posted as Incharge CIA police Naushahro Feroze, on the same date, he along with PCs Abdul Ghaffar Mashori, Khamiso Khan Mashori, Nisar Ahmed Kalhoro left CIA Center in police mobile vide Roznamcha Entry No.07 at 1215 hours for patrolling duty. While patrolling at various places when the police party reached at National Highway, near Bhiria City, where it is alleged that Incharge CIA received spy information that two persons were coming in a Parado, Silver Colour Vehicle bearing No.BD4450 from Sukkur to Karachi. According to information, accused persons had charas in secrete cavities of the vehicle. Police party held nakabandi near Grid Station Bhiria City. At 1600 hours vehicle appeared on the road from Sukkur side. It was stopped, two persons were sitting in it, one was driving the vehicle and another was sitting beside the driver seat. SIP inquired the name of the driver, to which he disclosed his name as Liaquat Ali son of Gul Hasan Magsi, resident of Labour Colony, Hub-Chowki, Balochistan. Another accused who was sitting beside the driver disclosed his name as Shad Muhammad son of Gul Nazar Gujjar Pathan, resident of Qalander Abad, Gulistan-e-Johar, Karachi. SIP made PCs Abdul Ghaffar and Khamiso Khan as mashirs and searched the vehicle. Under the seat of the vehicle there was a secrete cavity, it was opened and charas was found in such cavity in plastic bags. 16 bundles of the charas were in white, black and red plastic bags and words ‘Fair Trade Espresso Dark Rost’ were written. Two bundles of the charas were in two red coloured polythine bags, on which “candle’ was written. Different words were written on different bundles. Total weight of charas was 59 Kgs. SIP conducted personal search of accused Liaquat Ali in presence of mashirs and recovered one original CNIC and cash Rs.1500/-. From personal search of accused Shad Muhammad a CNIC and cash of Rs.2000/- were recovered. Accused had no vehicle documents. Mashirnama of arrest and recovery was prepared by SIP in presence of the above named mashirs and charas was sealed in three different plastic bags. Thereafter accused, case property and vehicle were brought to the police station Bhiria City where SIP kept Entry No.17 at 1830 hours. SIP Wali Muhammad, S.H.O. PS Bhiria City lodged F.I.R. bearing Crime No.145/2013 under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Bhiria City. Thereafter, investigation was handed over to S.H.O. Wali Muhammad Chang.

3. During investigation, IO visited the place of wardat on 05.11.2013 on the pointation of SIP Khadim Hussain and he prepared such mashirnama. 161 Cr.PC statements of PWs were recorded and three sealed parcels were sent to the chemical examiner on 12.11.2013, a positive report was received. On the conclusion of the investigation challan was submitted against both the accused under section 9(c) of the Control of Narcotic Substances Act, 1997.

4. Learned Special Judge (CNS) Naushahro Feroze framed charge against the accused Liaquat Ali and Shad Muhammad u/s 9(c) of the Control of Narcotic Substances Act, 1997 at Ex-3. Both the accused pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined following witnesses:

1. SIP Khadim Hussain Buledi at Ex-6

2. PC Abdul Ghaffar Mashori at Ex-7

3. PC Amjad Ali at Ex-8.

4. SIP Wali Muhammad at Ex-9. He produced positive chemical report as Ex-9/A.

Learned A.D.P.P. closed the side of prosecution vide his statement at Ex-10.

6. Statement of accused Liaquat Ali was recorded u/s 342 Cr.P.C, at Exh-11. He denied the prosecution allegations and raised plea that positive chemical report has been managed. Accused Liaquat Ali had not claimed Land Cruiser vehicle. However, replied that police had recovered amount of Rs.10,000/- from his possession. To a question as to why the prosecution witnesses have deposed against him, he replied that he did not know. Accused did not lead any defence and declined to give statement on oath.

7. Statement of accused Shad Muhammad was also recorded under section 342, Cr.PC at Ex-12. He replied in the same manner as co-accused Liaquat Ali and stated that he was arrested by the police from Hotel at Moro. He has denied the allegation of the recovery of charas from the vehicle but admitted that the police had recovered Rs.2,500/- from his possession and wrongly have shown Rs.2000/- recovered from his possession. Accused did not lead any defence and declined to give statement on oath.

9. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence convicted and sentenced the accused as stated above.

10. Mr. Muhammad Ashraf Qazi, learned counsel for the appellants, mainly contended that there was delay of about 9 days in sending the charas to chemical examiner and such delay was fatal to the prosecution case. He has further contended that particulars/details of the bags of the charas recovered from the secrete cavities of the vehicle did not tally with the parcels received by the chemical examiner. He further contended that evidence of the police officials has not been appreciated by the trial Court in its true perspective, which resulted in serious miscarriage of justice. Lastly, it was argued that a false case has been registered against the accused and charas has been foisted upon them. In support of his contentions, he has relied upon cases reported as 2015 SCMR 735 (KHUDA BAKHSH versus THE STATE) and 2015 SCMR 1002 (IKRAMULLAH and others versus THE STATE).

8. Mr. Mr. Zafar Ahmed Khan, Additional Prosecutor General Sindh argued that evidence of the police officials is as good as that of the private persons of the society. Learned Addl: P.G. further contended that delay of nine days in sending the charas to the chemical examiner is not fatal to the prosecution case as no question was put to the prosecution witnesses that there was any tampering with the case property at police station. Appellant Liaquat Ali was driving the vehicle and appellant Shad Muhammad was sitting along with the co-accused in the vehicle. Learned Addl: P.G. lastly argued that it was impossible for the police officials to foist such huge quantity of charas upon the appellants without any enmity. In support of his contentions, he relied upon the cases reported as GHULAM QADIR v THE STATE ( PLD 2006 SC 61), KASHIF AMIR v THE STATE (PLD 2010 SC 1052) and MUHAMMAD KHAN v THE STATE (2008 SCMR 1616).

9. We have carefully heard learned counsel for the appellants, learned Additional Prosecutor General and scanned the evidence available on record.

10. From perusal of the evidence it transpired that PW-1 SIP Khadim Hussain Buledi has deposed that on 04.11.2013 he was performing patrolling duty along with PCs Abdul Ghaffar Mashori, Khamiso Khan Mashori, Nisar Ahmed Kalhoro. While patrolling at various places, when reached near Bhiria City, National Highway, he received spy information that two persons were coming in a Parado, Silver Colour Vehicle bearing No.BD4450 from Sukkur to Karachi. According to such information, accused persons had charas in secrete cavities of the vehicle. Police held nakabandi near Grid Station Bhiria City. At 1600 hours a vehicle appeared on the road from Sukkur side. It was stopped, two persons were sitting in it, one was driving the vehicle and another was sitting beside the driving seat. SIP inquired the name of the driver to which he disclosed his name as Liaquat Ali son of Gul Hasan Magsi, resident of Labour Colony, Hub-Chowki, Balochistan. Another accused who was sitting beside the driver disclosed his name as Shad Muhammad son of Gul Nazar Gujjar Pathan, resident of Qalander Abad, Gulistan-e-Johar, Karachi. PCs Abdul Ghaffar and Khamiso Khan were made as mashirs and search of the vehicle was conducted. Under the seat of the vehicle there was a secrete cavity, it was opened and charas was found in cavity in plastic bags. 16 bundles of the charas were in white, black and red plastic bags and words ‘Fair Trade Espresso Dark Rost’ were written. Two bundles of the charas were lying in two red coloured polythine bags on which “candle’ was written. Different words were written on different bundles. Total weight of charas was 59 Kgs. SIP conducted personal search of accused Liaquat Ali in presence of mashirs and recovered one original CNIC and cash Rs.1500/- from personal search of accused Shad Muhammad one CNIC and cash of Rs.2000/- were recovered. Both the accused had no documents of the vehicle. Mashirnama of arrest and recovery was prepared in presence of the above named mashirs and charas was sealed in three different plastic bags. Thereafter accused, case property and vehicle were brought to the police station Bhiria City where SIP kept entry No.17 at 1830 hours. SIP Wali Muhammad, S.H.O. PS Bhiria City lodged F.I.R. on behalf of the State bearing Crime No.145/2013 under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Bhiria City against the accused. In his cross-examination, he denied the suggestion that the accused were arrested from the hotel at Moro. He had denied the suggestion that he had falsely involved the accused persons in this case.

11. PW-2 Abdul Ghaffar of CIA Naushahro Feroze has deposed that on 04.11.2013, he left the CIA Center along with SIP Khadim Hussain and other staff members in the Government vehicle. SIP Khadim Hussain had received spy information that one Parado vehicle was coming from Sukkur to Karachi, there was charas in the vehicle. On such information, nakabandi was held on the road near Grid Station Bhiria City at 1600 hours. When Parado vehicle appeared it was stopped. He deposed that SIP conducted search of the vehicle in his presence and in presence of the co-mashirs. Under the seat in secrete cavities of the vehicle SIP found plastic bags of charas. Charas was weighed by SIP in his presence and in presence of co-mashirs. Total weight of charas was 59 Kgs. SIP prepared such mashirnama and he signed on it. Accused, case property and vehicle were brought to the Bhiria Police Station where F.I.R. was lodged. He was cross-examined at length. He has denied the suggestion that he was deposing falsely at the instance of SIP Khadim Hussain as his subordinate. He has also denied the suggestion that his signatures are different on two mashirnamas. He has also denied the suggestion that charas was not recovered in his presence.

12. PW-3 PC Amjad Hussain has deposed that on 04.11.2013 he was posted at P.S. Bhiria City. On the same date, SIP Wali Muhammad Chang, S.H.O. P.S. Bhiria City interrogated accused Liaquat Ali and Shad Muhammad Pathan in Crime No.145/2013. Accused Liaquat Ali voluntarily led the police and pointed out the place where he had thrown the documents of the vehicle and those documents were collected from place near Grid Station Bhria City. Those original documents were of Parado vehicle bearing No.BD-4450 in the name of one Abdul Hakeem, such mashirnama was prepared. He was made as mashir. He denied the suggestion that he was deposing falsely at the instance of IO.

13. In this case investigation has been carried out by SIP Wali Muhammad Chang. He has deposed that on 04.11.2013 he was posted as S.H.O. P.S. Bhiria City. On the same day, SIP Khadim Hussain Buledi, Incharge CIA, Naushahro Feroze, brought two accused persons, namely, Liaquat Ali and Shad Muhammad along with 59 Kgs. of charas, one vehicle Parado BD-4450 at police station and he recorded F.I.R. No.145/2013 under 9(c) of the Control of Narcotic Substances Act, 1997 against the accused persons. He conducted investigation. During interrogation accused Liaquat Ali was prepared to point out the place where he had thrown the documents of the vehicle. He then collected those documents in presence of mashirs PC Amjad Hussain and PC Abdul Aleem and prepared such mashirnama. IO recorded 161 Cr.PC statements of the PWs. IO has stated that he sent entire case property to the Chemical Examiner Rohri on 12.11.2013 through P.S. Amjad Hussain and he received positive report which he exhibited as 9/C. On the conclusion of investigation he submitted challan against the accued persons under section 9(c) of the Control of Narcotic Substances Act, 1997. In cross-examination IO replied that charas received by him was duly signed. He denied the suggestions that he was deposing falsely against the accused.

14. From the perusal of the evidence it is proved that appellant Liaquat Ali was driving the Parado vehicle, at the time of his arrest co-accused Shad Muhammad was sitting with him in the vehicle and 59 Kgs. charas was recovered from the secrete cavity of the vehicle. Chemical report was positive. Knowledge and awareness would be attributed to the appellant Liaquat Ali as he was the driver of the vehicle and co-accused cannot be absolved from his responsibility as he was sitting with the driver. Accused Shad Muhammad could not explain as to why he was sitting with driver in

private vehicle. Accused Liaquat Ali in his statement recorded under section 342, Cr.PC has admitted the prosecution case to the extent that police recovered Rs.1500/- whereas accused Shad Muhammad admitted that police recovered Rs.2000/- from his possession. Honourable Supreme Court in the case of GHULAM QADIR v THE STATE (PLD 2006 SC 61) has held as follows:-

“6. Keeping in view the pronouncement made in the reported judgments of this Court we are of the opinion that the driver cannot be absolved from the responsibility if the contraband items are being transported openly on the roof of the vehicle, being driven by him.”

15. It is well settled principle that a person who is on driving seat of the Vehicle shall be held responsible for transportation of narcotics as held by the Honourable Supreme Court in the case of Kashif Anwar v State (PLD 2010 SC 1052). The relevant portion is reproduced 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. Reference in this behalf may be made to the case of Muhammad Noor v The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v State (1988 SCMR 1899) this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle.”

16. The contention of the learned Advocate for the appellants that private persons have not been associated as mashirs is without legal substance for the reasons that once the prosecution has apparently, established its case then under Section 29 of CNS 1997 burden shifts upon the accused to prove contrary to the plea of prosecution. In this case, positive chemical report has been produced in the evidence, which proved that substance recovered from the secret cavity of the vehicle of the accused was charas. Prosecution had discharged its initial onus while proving that substance recovered from secret cavity of vehicle was Charas whereas appellant had failed to discharge its burden as required under Section 29(d) of CNS 1997.

17. The contention of learned counsel for the appellants that all the PWs are police officials and their evidence requires independent corroboration. Mere fact that prosecution witnesses are police officials, by itself cannot be considered a ground to discard their statements, as the police officials are as good witnesses as private persons of the society. Reference in this context can be made to the case of Riaz Ahmad alias Raju v. The State, (2004 SCMR 988). Relevant portion is reproduced as under:

‘We have considered the contentions and have gone through the documents appended with this petition. The argument of the learned counsel that the testimony of police officials does not inspire confidence is totally devoid of any force. Nothing has been brought on record that any of the witnesses was having any malice against the petitioner. The police officials are as good witnesses as private persons of the society. The testimony of the prosecution cannot be thrown overboard simply on the ground that it has come from the police officials.’

Moreover, reluctance of general public to become witness in such like cases was a judicially recognized fact and there was no option left but to consider the statement of an official witness as no legal bar had been imposed in that regard.

18. Mr. M. A. Kazi, learned counsel for the appellants mainly contended that charas was sent to the Chemical Examiner after nine days, as such, positive report was not reliable. It is observed that Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, have placed no bar on the Investigating Officer to send the samples beyond seventy two hours of the seizure. The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory. These rules cannot control the substantive provisions of the C.N.S. Act 1997 and be applied in such a manner that its operation shall frustrate the purpose of the Act under which these rules are framed. Further, failure to follow the rules would not render the search, seizure and arrest under the C.N.S. Act an absolute nullity and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. In another case of Gul Alam vs. The State through Advocate General, NWFP, Peshawar (2009 PSC (Crl.) 600), Honourable Supreme court has been pleased to observe that there is no bar on the I.O to send the samples beyond 72 hours of seizure. Relevant portion is reproduced as under:-

“12. Adverting to the objection regarding late dispatch, it may be noted that rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 placed no bar on the Investigation Officer to send the samples beyond seventy-two hours of the seizure, receive the F.S.L report after fifteen days and the report so received to place before the Trial Court. The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory. These rules cannot control the substantive provisions of the C.N.S.A and to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these are framed. Further, failure to follow the rules would not render the search, seizure and arrest under the C.N.S.A an absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the petitioner that the property was tampered with during the process of transit or the remaining property was not ‘charas’. It was for the petitioner to have taken such plea before the Trial Court but the petitioner did not do so. However, we have examined the Chemical Analyzer’s report and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the argument of learned counsel for the petitioner is not sound. Tariq Mehmood v. The State through Deputy Attorney General Peshawar (PLD 2009 SC 39)

19. In the present case, there is no allegation of the appellants that the charas was tampered with during the process of transit. It was for the appellants to have taken such plea before the trial Court but the appellants did not do so. In the absence of any allegation of tampering with the property, the argument of learned counsel for the appellants is without substance as held in the case of Tariq Mehmood v. The State through Attorney-General (PLD 2009 SC 39).

20. Reverting to the last contention of the learned counsel for the appellants that particulars of the charas recovered from the secrete cavities of the vehicle were different from the parcels received by the chemical examiner. We have considered such contention deeply. Chemical Examiner in his report has mentioned that he had received three sealed parcels each parcel bearing five seals, all the seals were perfect. IO has also clearly deposed that charas received by him from SIP Amjad Hussain was sealed, therefore it was not checked by him and it was sent to the Chemical Laboratory. Learned counsel for the appellants has not been able to point out any serious defect in the investigation, minor lapses would not affect the validity of trial as held by the Honourable Supreme Court in the case of TARIQ MEHMOOD versus THE STATE through Deputy Attorney General, Peshawar (PLD 2009 Supreme Court 39). Relevant portion is as follows:

“9. Learned counsel for the appellant further contended that there were some serious lapses in the process of investigation which had vitiated the trial. However, he has not been able to point out any so-called serious defect in the investigation, other than certain minor lapses which do not affect the validity of the trial.”

As such, the contention of defence counsel is devoid of any legal force.

21. Learned counsel for the appellants Liaquat Ali and Shad Muhammad could not point out any misreading or non-appreciation of the evidence. We also do not find any illegality or infirmity in the impugned judgment so as to justify interference of this Court.

22. For the above stated reasons, we have come to the conclusion that prosecution has proved its case against the appellants beyond any shadow of doubt and the trial Court has appreciated the evidence according to settled principles of law and rightly convicted the appellants. Sentence awarded to appellants is according to sentencing policy, enunciated in the case reported as Ghulam Murtaza and another vs. The State (PLD 2009 Lahore 362), upheld by the Honourable Supreme Court in the case reported as Ameer Zeb vs. The State (PLD 2012 SC 380). Impugned judgment requires no interference by this Court. The appeal is therefore without merit and the same is dismissed.

J U D G E

J U D G E

Gulsher/PS