IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Jail Appeal No. D- 22 of 2008.
Crl. Appeal No. D- 23 of 2008.
Present:
Mr. Justice Shahid Anwar Bajwa.
Mr. Justice Imam Bux Baloch.
1. Ali Asghar son of Faqir Mohammad Massan,
2. Nadeem son of Wahid Bux Abro.
…………...Appellants.
Versus
The State. …...…..…Respondent.
Mr. Faiz Mohammad Larik, Advocate for appellants.
Mr. Ali Raza Pathan, State counsel.
Date of hearing: 17.03.2010
Date of Judgment: 19.03.2010.
J U D G M E N T
Imam Bux Baloch, J-. By this common judgment we propose to dispose of above captioned two appeals, as they are arisen out of the same crime.
The appellants have assailed the impugned judgment dated 27.08.2009, passed by learned Special Judge (CNS), Larkana, whereby appellants were convicted under section 9 (c) of Control of Narcotic Substances Act, 1997, and were sentenced to undergo for eight years each and to pay fine of Rs.200,000/- each and in default of payment of fine, they shall undergo R.I for two years more. They were however extended benefit of section 382-B Cr.P.C. Having dissatisfied with the impugned judgment the appellants filed these appeals.
The prosecution story in brief is that, a party of Excise Police led by Inspector Abdul Hafeez Qureshi, on receiving information through spy intercepted a Datsun being driven by accused Ali Asghar on 08.10.2004, at 12.30 noon, when the drive stopped the vehicle, on persons sitting in the rear portion jumped down with a bag, containing some stuff and started running. Some of police personnel tried to capture him but he managed to slip away throwing the bag on the road, which was found containing one kilogram of charas. It is further case of prosecution that other members of Excise Police enquired from the driver and one other person sitting with him, about their identity, to which one disclosed himself to be Ali Asghar Massan, while another person sitting with him disclosed his name to be Nadeem Ali Abro. It is further alleged that one pillow was also found in the vehicle in which four slabs of charas weighing one kilogram each were also recovered behind the driver seat. After taking the sample from the bag thrown by accused, as well as from charas recovered from pillow, the charas was sealed in two parcels. Then, the vehicle, captives and the property were brought at Excise Office, where complainant registered case to the above effect.
At trial the prosecution examined PW-1 complainant Excise Inspector Abdul Hafeez Qureshi at Ex.11. He produced memo of arrest and recovery at Ex.11-A. F.I.R at Ex.11-B, and chemical examiner’s report at Ex.11-C, so also entries of arrival and departure at P.S as Ex.11-D and 11-E. PW-2 Excise Constable Zamir Hussain was examined as Ex.13, and after prosecution closed its side. The statements of the appellants were recorded under section 342 Cr.P.C., wherein they denied the allegations contained in the prosecution case. The appellants did not examine themselves under section 340 (2) Cr.P.C. After appraisal of the evidence the learned trial Court convicted and sentenced the appellants as stated above.
Heard the learned counsel for the parties and perused the material available on record. Learned counsel for appellant Nadeem contended that appellant Nadeem was said to be sitting in the Datsum pickup and the alleged charas was recovered from the front seat of the Datsun backside of cleaner side and the appellant Nadeem was not in knowledge of any incriminating article available in the pickup. He further contended that the charas has not been recovered from exclusive possession of appellant Nadeem. Neither he is owner of the Datsum pickup nor he is driver of the said vehicle, hence recovery, if any is not in the knowledge of the appellant Nadeem. He further contended that sample has not been taken out from each slab of charas and only one slab of one kilogram was sent for chemical analysis and therefore, it cannot be said with certainty that all the property allegedly recovered to be charas. He has further contended that the owner of the pickup namely, Ghous Bux was not cited as witness or even not cited as accused, which creates reasonable doubt and false implication of appellant Nadeem cannot be ruled out. Mr. Faiz Mohammad Larik, learned counsel for appellant Ali Asghar contended that the appellant is in custody since 27.08.2008. He submits that if the sentence is modified to the sentence as already undergone, it will meet ends of justice.
Learned counsel appearing for the State supported the impugned judgment and contended that four kilograms of charas is recovered from possession of appellants and the learned trial Court has already taken lenient view.
We have considered the submissions made by the learned counsel for the parties and with their assistance have gone through the evidence produced by the prosecution at the trial.
Complainant Abdul Hafeez Qureshi deposed at trial that on 08.10.2004, he alongwith his subordinates, on receipt of spy information left their office for going towards the pointed place under roznamcha entry No.1, they reached near railway crossing Bagi road Badeh, after some time, they saw that a Datsun came from Badeh side for which they were given information, in which two persons were sitting on front sea and one person was sitting on back side. He further deposed that person who was sitting on back side, on seeing police jumped from Datsun alongwith bag and started running, when constables followed he thrown the bag and succeeded to escape; the said bag was opened and found containing with one bundle of charas. Complainant further deposed that persons sitting in front seat of Datsun on enquiry disclosed his name to be Nadeem Ali Abro, and the driver disclosed his name as Asghar Massan. On search of Datsun from front seat of Datsun complainant secured one pillow of white color, he opened the said pillow and found four bundles of charas in it, same was weighed and became four kilograms, out of which one kilogram was sealed as sample. Then both the persons were arrested under mashirnama.
Mashir E.C Zamir Hussain deposed in his examination in chief that on 08.10.2004, he was posted as E.C at P.S Circle, Larkana. He deposed that complainant left office alongwith him and other staff on receiving information about accused persons having in possession of narcotics substances. After leaving office they proceeded to the place of incident situated near railway crossing Baqi Road Badeh and reached there, where after some time they found pick up while coming from Badeh side, they gave it signal to stop, as such pick up was stopped in which two persons were sitting in front portion, whereas one person was sitting on its back side. One of them alighted from the Datsun and started running back as such complainant directed party members to chase him, as such EC Gulzar Ali and EC Tarique Ali followed him, after covering some distance said person fled away by throwing bag and the complainant secured said bag whereas said constables remained chasing the accused. Complainant opened the bag and found one bundle of charas lying under the cloths and one NIC which was of one Haji Iqbal alias Haji Jagyani. He further deposed that driver and one person were sitting on front seat who were got down and on enquiry one of them disclosed his name as Nadeem Abro and driver disclosed himself to be Ali Asghar Massan. On search of vehicle one pillow of white color was recovered and on its opening four bundles of charas were recovered. On weighing charas, which was recovered from bag become one kilogram which was sealed and charas recovered from pillow became four kilograms, out of which one kilogram was separated for dispatching to the chemical examiner and remaining three kilograms were sealed separately.
It is admitted fact that the white pillow was recovered behind driver’s seat and it cannot be ruled out that the appellant Nadeem was in knowledge or not. But appellant Ali Asghar being driver of the pickup will be in knowledge and it can be said with certainty that he was in knowledge of the pillow and being driver of the pick up he must have been in knowledge of every thing which were available in the pickup. It is also admitted position that nothing was recovered from possession of appellant Nadeem.
After evaluating the entire evidence we are of the view that prosecution has failed to establish charge against appellant Nadeem beyond reasonable shadow of doubt. Consequently, appeal filed by appellant Nadeem is accepted and he is acquitted of the charge by extending him benefit of doubt. He shall be released forthwith, if not required in any other case.
As for as appellant Ali Asghar is concerned, we find that he is first offender and record did not reveal that he is previously involved in such type of cases, therefore, his sentence is reduced to sentence already he has undergone as under trial prisoner and convict. With this modification appeal filed by appellant Ali Asghar is dismissed. If any authority is needed one may refer to 2007 MLD 46.
Judge
Judge