IN THE HIGH COURT OF SINDH AT KARACHI

 

 

Criminal Appeal No.21 of 2009.

&

Criminal Appeal No.22 of 2009

 

Present:

 

Mr. Justice Bhajandas Tejwani, and

Mr. Justice Irfan Saadat Khan.

      

 

 

Appellant Mateen Kamal (Cr. Appeal 21/09) through Mr. Muhammad Ashraf Kazi, advocate  

 

Appellants Shamsur Rehman and Abdul Samad  (Cr. Appeal 22/09) through Mr. Ilamdin Khattak, advocate 

 

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

 

Dates of hearing:           3 August 2010.

 

 

J U D G M E N T

 

 

IRFAN SAADAT KHAN, J:  By this common judgment we propose to dispose of the above two criminal appeals as the same arise out of a common judgment passed by Special Court-II (CNS), Karachi dated 24.12.2008 whereby the appellants were convicted under the provisions of section 9(c) of Control of Narcotic Substances Act, 1997 (`the Act') and sentenced to suffer life imprisonment  and also to pay fine of Rs.500,000 each and in case of default of payment of fine each to further suffer S.I. of one year.  Moreover, benefit of section 382-B, Cr.P.C. was extended in their favour.

2.                  Briefly stated facts of the case are that on 13.3.2004, on spy information regarding presence of huge quantity of charas, Muhammad Saleh Keerio, Excise Inspector alongwith his sub-subordinates, raided bungalow No.A-92, Block C, North Nazimabad, Karachi. In response to the bell ring a person came out of the said bungalow, who identified himself as Mateen Kamal – owner of the said bungalow.  He  was informed that as per secret spy information there is a huge quantity of charas lying on the upper floor of the said bungalow. Thereafter, accompanying the said Mateen Kamal, the raiding party entered the said bungalow  where  they  found  a  car bearing No.F-1351 parked in respect whereof the said Mateen Kamal stated that the same belongs to a person staying in the upper floor, namely, Shamsur Rehman.  On reaching the upper floor, alongwith Mateen Kamal, the police party found two persons one of whom identified himself as Shams-ur-Rehman son of Abdur Rehman, formerly resident of Namak Mandi, Peshawar while the other identified himself as Abdul Samad son of Muhammad Yaqoob, formerly resident of Quetta. Both these persons claimed that presently they were residing in Karachi in Gulshan-e-Iqbal and Nazimabad area respectively. Thereafter, on the pointation of the spy, the police party found a secret room constructed between two rooms, which was closed from all four sides. The wall of the said room was broken open with the help of a pickaxe and was found to be filled with brown coloured packets wrapped in plastic.  When these packets were opened, it transpired that they were containing Charas.  There were total 974 packets weighing 1948 Kilograms, with each packet weighing two Kilograms. Samples were drawn from each plastic bag and the remaining charas was sealed on the spot in plastic bags. The recovered charras, as well as the car of the appellant Shams-ur-Rehman, were taken into possession and the appellants were arrested under proper mashirnamas. After completing the usual investigation, they were sent up to stand trial before the CNS Court No.1, Karachi.

3.                  At the trial, the prosecution examined two witnesses viz.  Muhammad Sail (P.W.1) and Muhammad Saleh, Excise Inspector (P.W.2). The appellants, in their statements recorded under section 342, Cr.P.C., denied all the allegations of the prosecution and claimed themselves to be innocent. Appellants Shamsur Rehman and Abdul Samad examined themselves on oath and the appellant Abdul Samad also produced one defence witness but appellant Mateen Kamal did not examine himself on oath. After considering the evidences, the learned Special Judge-I (C.N.S.), Karachi, vide judgment dated mentioned above found the appellants to be guilty of the charge leveled against them. It is against this judgment that the above two appeals have been filed before this Court.  

4.                  Mr. Muhammad Ashraf Kazi, learned counsel for appellant Mateen Kamal, submitted as under:

i)                    that nothing incriminating was recovered from the physical search of the appellant Mateen Kamal;

ii)                   that his client never knew about the presence of charas in the secret store room;

iii)                 that the said appellant neither aided nor abetted in the crime; and

iv)                 that the police did not obtain a search warrant although it had ample time to do so. 

 

In support of his submissions, the learned counsel  relied on the following case law:

2003 SCMR 881,

PLD 2008 SC 376,

PLD 2005 Kar. 128, and

PLD 2001 Kar. 369.

 

5.                  Mr. Ilamdin Khattak, learned counsel appearing for appellants Shamsur Rehman and Abdul Samad, submitted as under:

i)                    that the prosecution has not produced any documentary evidence to show that these two appellants were tenants of appellant Mateen Kamal;

ii)                   that nothing was recovered on the pointation of the said appellants rather the recovery was made on the pointation of the spy;

iii)                 that nothing was recovered from the car of the appellant Shamsur Rehman, allegedly parked in the said bungalow; and

iv)                 that no incriminating article was recovered from the physical search of the said appellants. 

v)         In support of his submissions, the learned counsel relied on 2010 SCMR 927 and Article 129 of the Qanun-e-Shahadat Ordinance, 1984.

 

6.                  On the other hand, Mr. Zafar Ahmed Khan, learned Additional Prosecutor General, appearing on behalf of the State, referred to Article 27 of the Qanun-e-Shahdat Ordinance and stated that construction of the secret store room, from where the contraband articles were recovered, fully connects the appellant Mateen Kamal with the commission of the offence. He further submitted that absence of a rent agreement itself proves that the appellants were not having any legal connection with each other, as that of landlord and tenant, rather they were involved in the illegal activities.  He further opined that all the appellants are strangers to each other but were found at one place alongwith the contraband articles hidden in a secret place and that it is quite impossible that the raiding party will foist such a huge quantity of charas on the appellants.  The learned APG, in support of his arguments, relied on 2008 SCMR 1254.

7.                  We have heard the arguments of all the learned counsel and have also perused the case laws and the record.

8.                  This is a case involving recovery of huge quantity of charas - to be precise 1948 Kilograms, from bungalow No.A-92, Block C, North Nazimabad, Karachi.  Admittedly, the said bungalow was owned by the appellant Mateen Kamal.    On the day of the incident, when the excise police party raided the said bungalow, only three male persons, each belonging to a different part of the Country, were available.  As per the spy information, which proved to be correct, the said huge quantity of charas was kept at a hidden place, which was secured after dismantling one of the walls of the secret store room. 

9.                  The  prosecution  case  rests on the evidence of two witnesses, namely, PW-1 Muhammad Sail who was mushir of recovery and arrest and PW-2 Muhammad Saleh Keerio, Inspector, Excise Police and complainant in the case.

10.              PW-1 Muhammad Sail in his deposition stated that on 13.3.2004 they reached the said bungalow at about 9.30 p.m.  Inspector Muhammad Saleh pushed the door bell in response to which appellant Mateen Kamal came out of the bungalow.  On entering the said bungalow they found a car parked inside the bungalow which said Mateen Kamal stated that the same belonged to appellant Shamsur Rehman, who was stated to be living on the first floor of the said bungalow.  The police party alongwith said Mateen Kamal went to the First Floor and found two persons, namely, Shamsur Rehman and Abdul Samad, sitting in a room.  The first floor consisted of two rooms and one hall.  On the personal search of Shamsur Rehman, the raiding party recovered, amongst other things, transfer letter in respect of the car parked inside the bungalow.  On the directions of Inspector Muhammad Saleh his subordinates demolished the wall of a secret store room and recovered 947 packets of charas each packet weighing two Kgs.  Thus, a total of  1948 Kgs charas was recovered from the said secret store room. Samples were taken from each packet and the rest of the charas was sealed on the spot.

11.              During cross examination, this PW admitted that the Excise police party was posted at Sukkur and Mr. Dharma was director of Sukkur Region but he also stated voluntarily that Mr. Dharma was also incharge of Karachi Excise Region. It was also put to him that the then Excise Minister also arrived at the place of incident alongwith his staff to which the witness showed his ignorance.  He has also admitted in his cross examination that he did not state in his 161, Cr.P.C. statement as to how the recovered charas was weighed.  However, he vehemently denied the suggestion that the recovery was not made in his presence or that appellants Shamsur Rehman and Abdul Samad were not present in the said bungalow at the time of recovery of the charas. He also admitted that no person from the locality was joined as a witness but went on to state that Inspector Muhammad Saleh asked some persons to become witness in the case but they refused.  He also denied that the said two appellants were picked from some other places.  He also denied that appellant Shamsur Rehman and Abdul Samad had no connection with the recovered charas.   

12.              PW-2 Inspector Muhammad Saleh, in his deposition also stated the same facts but he also added that the transfer letter was in respect of Car No.F-1351 and he also produced the report of the chemical examiner. During cross-examination, this witness admitted that he did not obtain search warrant from any Magistrate.  He also affirmed the suggestion that during investigation appellant Mateen Kamal disclosed that appellants Shamsur Rehman and Abdul Samad are his tenants and appellant Shamsur Rehman used to park his car on the ground floor with his permission.  He also stated that at the time of departure from Sukkur, the spy was sitting with him in the mobile. He also admitted that he has not produced any documentary evidence to show that appellants Shamsur Rehman and Abdul Samad were tenants of appellant Mateen Kamal.  However, he denied the suggestions that he kept the recovered charas at his home or that the recovered item was not charas or that the report of the chemical examiner was fabricated and arranged.   

13.               Although these two witnesses were cross examined at length by the two learned counsel i.e. Mr. Muhammad Ashraf Kazi for appellant Mateen Kamal and Mr. Ilamdin Khattak for appellants Shamsur Rehmand and Abdul Samad but they were unable to shake their depositions or to create any doubt in the prosecution case benefit whereof may be extended to the appellants.

14.               Mr. Muhammad  Ashraf Kazi, learned counsel for the appellant Mateen Kamal argued that no documentary proof with regard to tenancy of Shamsur Rehman and Abdul Samad was produced by the prosecution.  PW-2 in his deposition [page 39 of paper book] stated that it was claimed by appellant Mateen Kamal that Shamsur Rehman was his tenants.  Therefore, no duty was caste upon  the prosecution to produce any documentary proof in this behalf.  On the contrary, if Mateen Kamal was to show that he had no connection with the recovered charas as the same was recovered from the first floor which was rented out to Shamsur Rehman and was in his exclusive possession, it was, in our opinion, his duty to prove that the said Shamsur Rehman was his tenant.  Although, even then it would have been difficult for him to distance himself from the recovered charas for reasons to be discussed at appropriate place in this judgment.   

15.              Mr. Kazi also argued that his client never knew about the presence of charas on the upper floor of his bungalow and that he did not aid or abet co-accused Shams-ur-Rehman and Abdul Samad. This argument may have some force in favour of appellant Mateen Kamal, in case the contraband articles would have been recovered from some place which could be said to be belonging to the appellants Shamsur Rehman and Abdul Samad e.g. a cabinet, suit case, etc.  However,  the  said  charas  was  recovered  from  a  secret  store  room  which was specifically built for the said purpose in the said bungalow owned by Mateen Kamal.  For this purpose some construction work involving use of cement, sand, bricks etc. must have been carried out with the help of some mason or labourer.  This could not have been done without the express permission and knowledge of Mateen Kamal.  Had there been a relationship of landlord and tenant only between Mateen Kamal as owner/landlord of the said bungalow and Shamsur Rehman as tenant, he would have strongly objected to any such construction work in his house without his permission.  This is a common knowledge that landlords keep a strict vigil on their tenants and do not allow them to carry out any alteration in the rented premises without their prior permission.   Thus, in our opinion, he was in full knowledge that a secret store room has been constructed for the purpose of storing charas and, therefore, was fully connected with recovered charas and was involved in the alleged crime.

16.                  There is a clear contradiction in the respective case set up by the two sets of appellants as, on the one hand, Mr. Muhammad Ashraf Kazi, leaned counsel for appellant Mateen Kamal states that Mateen Kamal has rented out the upper floor of his bungalow to appellant Shamsur Rehman and has tried to distance himself from the recovery of charas by throwing the blame at the foot of appellants Shamsur Rehman and Abdul Samad, but, on the other hand, learned counsel for appellants Shamsur Rehman and Abdul Samad denies that there was any relation of landlord and tenant between Mateen Kamal and Shamsur Rehman in respect of the upper floor of the said bungalow and submits that the said two appellants, represented by him, were not present in the said bungalow at the time of recovery of charas and that they were arrested from their respective residences and have been falsely implicated in this case.  However, presence of the two appellants  Shamsur Rehman and Abdul Samad at the said bungalow is not denied by appellant Mateen Kamal. It is also not denied by Mateen Kamal that car of the appellant Shamsur Rehman was parked inside the said bungalow.  This contradiction clearly lends support to the deposition of the two prosecution witnesses that the appellants were arrested from the bungalow of Mateen Kamal and the car of the appellant Shamsur Rehman was also parked therein.   Needless to state that on the search of Shamsur Rehman car transfer documents were also recovered.   

17.              It was   also argued by both the learned counsel for the appellants that nothing incriminating was recovered from the personal search of the appellants and that the recovery was not made on the pointation of any of the appellants rather it was made on the pointation of the spy.  This argument is of no help to the appellants as in the present case neither it is claimed that the recovery of charas was made from the appellants personal search nor the recovery was made from a public place or a bus or truck etc. rather it was made from the bungalow of Mateen Kamal who has stated during investigation that appellant Shamsur Rehman was his tenant in respect of the upper floor from where the charas was recovered from a secret store room. It may also be stated that, in our opinion, such huge quantity of charas can only be kept in a spacious hidden place, as in the present case, with the knowledge of the appellant Mateen Kamal.  Even otherwise,   it is not the case of the prosecution that the recovery was made while the appellants were transporting the contraband articles from one place to another place when it would be material as to from whose possession the same was recovered. The case of the prosecution is that on spy information they came to know that huge quantity of charas was concealed in a secret place in the said bungalow which secret information has proven to be correct.

18.              The question arises as to whether all the appellants can be held in joint possession of the property. In this connection sections 6 and 29 of the Act are quite relevant. Section 6 of the Act provides that possession of narcotic drugs is an offence which is punishable under section 9 of the Act. Provisions of Section 6 of the Act were considered in a judgment by the Hon'ble apex Court in a judgment reported as  2010 SCMR 927 as under:---

"(6) Prohibition of possession of narcotic drugs etc.-- No one shall produce, manufacture, extract, prepare, possess, offer for sale purchase, distribute, deliver on any terms whatsoever transport dispatch, any narcotic drugs psychotropic substance or controlled substance except for medical, scientific or industrial purchase in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force."

 

It will be noticed that in this section no condition or qualification has been made that the possession should be an exclusive possession. Therefore the possession can be joint with two or more persons.”

 

19.              In the same judgment the provisions of section 29 of the Act, which deal with “presumption from possession of illicit articles”  in the following words:

 

“7. The next question for consideration is as to how far the prosecution proves the possession of narcotic substance by the accused.

 

It is pointed out that in most of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature has enacted a provision in the shape of section 29 in the Act to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drug. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge. The said section reads as under:-

 

(29). Presumption from possession of illicit articles.--- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of---

 

(a) Any narcotic drug psychotropic substance or controlled substance;

 

(b) Any cannabis, coca or opium poppy plant growing on any land which he has cultivated;

 

(c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or

 

(d) Any material which have undergone any process towards the production or manufacture of narcotic drug psychotropic substance or controlled substance or controlled substance or 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.

 

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 make 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 the cases of Inder Sain v. State of Punjab AIR 1973 SC 2309.

 

20.              In the present case, the charas, which is a contraband article, was recovered from a secret store room built for the purpose of storing the same on the first floor of the bungalow owned by appellant Mateen Kamal.  Appellant Mateen Kamal has not been able to show that any of the appellants Shamsur Rehman or Abdul Samad was in lawful occupation of the upper floor as a tenant.  He has also not shown that he was away from his bungalow for considerable long time during which, without his knowledge and permission, his tenant to be Shamsur Rehman - even though he has failed to prove that Shamsur Rehman was his tenant - might have constructed the secret store room and stored the said charas therein without his knowledge. 

21.              Mr. Ilamdin Khattak also submitted that nothing incriminating was recovered from the car of the appellant Shamsur Rehman.  It is also irrelevant whether any incriminating material was recovered from the car or not as it is not the case of the prosecution that anything was recovered from the car of the appellant Shamsur Rehman.  The presence of car in the said bungalow amply proves that appellant Shamsur Rehman was present in the said bungalow.     

22.              Mr. Kazi also argued that appellant Mateen Kamal was made to sit downstairs and, therefore, he has no connection with the recovery but PW-1 (at page 23 of the paper book) and PW-2 (at page 35 of the paper book) have clearly stated that Mateen Kamal accompanied them to the first floor of the bungalow.  No doubt it is also stated by PW-1 at page 29 of the paper book that “in response of the ring accused Mateen Kamal came out from the house and we made to sit him down stair” but this does not mean that later on, after collecting necessary information from him like his name, the ownership of car parked outside, etc., he was not taken upstairs. 

23.              It was also argued before us that since no search warrants were obtained by Inspector Muhammad Saleh before conducting the raid, therefore, the entire exercise is a nullity in the eye of law.  In this regard the learned counsel relied on the case reported as 2003 SCMR 881.  However, in this regard the learned APG submitted that since the provisions of the said section are directory in nature non-compliance thereof will not render any trial or conviction as null and void.  He relied on the case reported as 2008 SCMR 1254.  It may be mentioned here that the case relied upon by the learned counsel for the appellant was of a Bench of three Hon’ble Judges of the Hon'ble Apex Court while the case relied upon by learned APG was of a Bench comprising of four Hon'ble Judges and is a recent view of Apex Court. In the last mentioned judgment it was held as under:

“Even the provisions of sections 20 to 22 of C.N.S.A. being directory, non-compliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot be set aside. Reference in this behalf can be made to the cases of Fida Jan v. The State 2001 SCMR 36; State through A.-G., Sindh v. Hemjoo 2003 SCMR 881, Karl John Joseph v. The State PLD 2004 SC 394 and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393, wherein it is observed that where provisions of C.N.S.A. are directory in nature, non-compliance of the same is not fatal. Even otherwise no evidence has been produced to establish that the place of recovery and arrest was not within the jurisdiction of the police station concerned.”

 

Moreover, when Mr. Kazi was apprised about the decision of the Hon’ble Supreme Court, referred by  the learned APG, no rebuttal was offered by him.

24.              Much emphasis has been laid by learned counsel for the appellants that the raiding party belonged to Sukkur but it has not been shown or even alleged that the Inspector heading the said party or its member had no jurisdiction to conduct such raid on the bungalow of the appellant Mateen Kamal.  It has come in the deposition of the PWs that Karachi falls within the jurisdiction of Sukkur Circle and, therefore, was within the jurisdiction of the raiding party. 

25.              The upshot of the above discussion is that these appeals have no merits and are, accordingly, dismissed and the judgment passed by the Special Judge, being in consonance with the law and facts, is hereby upheld.

 

Judge

 

Judge

Karachi, the ____ August, 2010.