IN THE HIGH COURT OF SINDH AT KARACHI

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.341 of 2006.

Present:

Mr. Justice Shahid Anwar Bajwa, and

Mr. Justice Irfan Saadat Khan.

Appellants, Meharban and others through Mr. M. Haseeb Jamali, advocate.

Respondent through Mr. Umar Hayat Sindhu, Deputy Attorney General.

Dates of hearing: 21.7.2010 and 22.7.2010.

J U D G M E N T

IRFAN SAADAT KHAN, J: This appeal is directed against the judgment dated 16.9.2006 passed by the Special Judge-I for Control of Narcotic Substances, Karachi in Special Case No.263/2003 whereby the appellants Meharban, Muhammad Ramzan and Muhammad Khan were found guilty of the offence punishable under section 9-C, Control of Narcotic Substances Act, 1997 and were, therefore, convicted and sentenced to suffer life imprisonment and to pay fine of Rs.200,000 each and in default of payment of fine to suffer further rigorous imprisonment of two years.

2. Briefly stated the facts of the case are that on 23.6.2003 Senior Preventive Officer of Customs, namely, M.M.A. Ejaz, received spy information that a truck, bearing registration No.LS-6328 will be used for transportation of Narcotics from Karachi to Hyderabad, who passed this information to his senior officers and a raiding party was arranged headed by the said M.M.A. Ejaz. The raiding party left Customs Office at about 3.00 p.m. and held Nakabandi at a place situated 3-4 Kilometers ahead of Toll Plaza towards Hyderabad. At about 5.00 p.m. the above said alleged truck was seen coming from Karachi and was stopped. Appellant Meharban was allegedly found sitting on the driver seat, while the other two appellants, namely, Muhammad Ramzan and Muhammad Khan were found sitting on the adjacent seats. Since smell of Charas was oozing from the truck a musheernama of detention of the truck for its cursory examination was prepared, which was signed by Musheers Muhammad Rafiq and Zahoor Ahmed Kiyani. Thereafter the truck in question was taken into custody and was brought at NMB Wharf, Karachi where it was thoroughly searched whereupon, it is alleged, that charras in the shape of rods weighing 230 Kilograms was recovered from the oil tank and secret cavities made in the walls of the truck. Duplicate registration book and Part-B thereof were also recovered. Thereafter the appellants were arrested and a second musheernama of recovery of charas was prepared, which also was signed by the above mentioned two mashirs. The complainant also prepared mushirnama of arrest of the appellants. The complainant claims to have observed the required legal formalities of drawing samples, sealing the case property and its sample, etc. and then registered the FIR. During investigation it transpired that the said truck belongs to one Gul Khan. On completion of the investigation Challan was prepared showing the present appellants in custody, while the owner of the truck namely Gul Khan was shown as absconder. Charge was framed against the present appellants on 13.4.2004, to which they pleaded not guilty. The prosecution in support of its case examined PW-1 M.M.A. Ejaz, Senior Preventive Officer of Customs at Exh.7, PW-2, Muhammad Rafiq (Customs sepoy) and PW-3, Zahoor Ahmed Kiyani, (Customs Sepoy), both mashirs of arrest and recovery, as Exhibits 3 and 4 respectively, PW-4, Azhar Mehdi (Senior Preventive Officer of Customs), I.O. of the case as Exhibit 10. The witnesses also produced some documents. The statements of accused/appellants were recorded under section 342, Cr.P.C. as Exhibits 12, 13 and 14. After hearing the advocate for the accused/appellants and the SPP for the State, the learned trial Court found the appellants guilty of the offence and accordingly convicted and sentenced them as stated above.

3. Mr. Haseeb Jamali, learned counsel for the appellants pointed out a number of discrepancies/anomalies in the prosecution which are summarized as under:

(1) That the case was handed over to the I.O. after a delay of five days which has not been explained;

(2) That the seizing officer has himself sent sample to the chemical examiner for examination instead of handing over the same to the I.O., for which no plausible explanation has been furnished;

(3) That there is a marked contradiction between the depositions of prosecution witnesses with regard to the place of Nakabandi;

(4) That the prosecution has neither adhered to provisions of sections 35 and 36 of the Control of Narcotics Substance Act nor had applied Rule 4(2) of Control of Narcotics Substances (Government Analyst) Rules 2001 in its true perspective;

(5) That the whole story of the prosecution is false;

(6) That the appellants were not previous convicts;

(7) That no contraband substance was recovered from the physical possession of any of the appellants or from the driver’s cabin of the truck in which the appellants were allegedly found sitting at the time of the raid;

(8) That there is contradiction with regard to the dismantling of the secret vaults of the truck while recovering the alleged contraband items;

(9) That the statements under section 161, Cr.P.C. have been recorded after a delay of two weeks, for which there is no plausible explanation available;

(10) That no serious efforts were made for arresting the main culprit i.e. owner of the truck, namely, Gul Khan;

(11) That no efforts were made to arrest the person to whom the contraband goods were to be delivered;

(12) That there is contradiction in the depositions of prosecution witnesses with regard to the manner of weighing of the allegedly recovered contraband item;

(13) That there is also contradiction in the depositions of the prosecution witnesses with regard to the kind of scale used for weighing the confiscated contraband item;

(14) That the possession of any contraband item has to be with knowledge and even if it is assumed that the appellants were having the contraband items in their possession the same was without knowledge.

(15) That no person from the Al Buraq Petrol Pump was examined by the prosecution;

(16) That no effort was made for obtaining finger prints from the polythene bags recovered from the truck carrying contraband items.

In support of his above contentions/submissions the learned counsel for the appellants relied on the following judgments:

1. 2006 P.Cr.L.J 58,

2. PLD 1998 SC 516,

3. 2005 SC 1017,

4. 2003 P.Cr.L.J 702,

5. PLJ 2008 Cr.Cases (Pesh) 40 (DB),

6. 2003 P.Cr.L.J 680,

7. 1995 SCMR 1345,

8. SBLR 2007 Sindh 460,

9. 2001 YLR 2958,

10. 2005 YLR 605,

11. PLD 2004 SC 856,

12. 1997 SCMR 543,

13. 2008 SCMR 991,

14. PLD 2008 Kar. 8,

15. 2005 P.Cr.L.J 2030,

16. PLJ 2000 Cr.Cases (Kar) 921 (DB),

17. 2007 YLR 839,

18. 2009 P.Cr.L.J 50,

19. 2008 YLR 37,

20. PLD 2007 Kar. 555,

21. 2008 MLD 797,

22. 2006 YLR 401,

23. 2007 P.Cr.L.J 913

24. PLD 2006 SC 61,

25. 2010 P.Cr.L.J 825,

26. 2006 SCMR 299,

27. 2007 SCMR 1435,

28. 2007 SCMR 1378,

29. 1993 SCMR 785,

30. 2003 SCMR 1237, and

31. PLD 2006 Pesh. 39.

4. On the other hand Mr. Umar Hayat Sindhu, DAG, appearing for the State, submitted as under:

(1) That the decision given by the trial Court is primarily based on three propositions:

(i) That it is not challenged by the defence side that the said truck was intercepted and detained by the Customs authorities and contraband items were recovered therefrom;

(ii) there is consistency in the depositions of the prosecution witnesses;

(iii) That there is no denial of the fact that the accused persons/appellants were arrested with contraband items alongwith the truck and there is no denial from the defence side with regard to the weight of the contraband items recovered from the truck

(2) He further submitted that though the seized items were kept by the I.O. for more than two months but there is no allegation with regard to either tampering with the seized material or changing the same.

(3) According to the learned DAG there may be minor contradictions in the depositions of the PWs but these minor contradictions cannot be taken seriously and that these minor contradictions do not adversely affect the case of the prosecution.

(4) He further submitted the prosecution has proved its case beyond any shadow of doubt and, therefore, the impugned judgment passed by the learned trial Court may be affirmed.

(5) In support of his submissions the learned DAG relied on the following cases:

1. 2010 SCMR 891,

2. 2010 P.Cr.L.J 360,

3. 2009 YLR 1724,

4. 2010 P.Cr.L.J 157,

5. PLJ 2005 Cr.Cases 70,

6. PLD 2009 SC 856,

7. 1997 SCMR 534 and

8. 2010 SCMR 927.

6. We have heard the learned counsel for the parties at length and have gone through the record and the case laws relied upon by the learned counsel.

7. PW-1, M.M.A. Aijaz, in his deposition stated that the recovered Charras was weighed on the scale belonging to Karachi Port Trust, however, it is quite strange that while weighing a huge quantity of 230 Kgs of charas no person from the Department except the said PW was present at the spot nor the said PW called any person for his assistance. Question arises as to how he managed to handle the huge quantity of 230 Kgs of Charas by himself alone without calling any person for his help and assistance? The following portion of his deposition is reproduced the sake of ease of reference:

“The recovered property was weighed with the help of weighing scale of KPT, which was available at the distance of 100 paces. It is a fact that Customs Dept. and KPT are two different organizations. It is a fact that the scale of KPT was in control of KPT Dept. When I weighed the case property at the scale of KPT, no person from that department was available there, nor I have called any person.”

However, PW-3, Muhammad Rafiq, in his deposition stated as under:

“The case property was weighed in our office. The weighing machine was brought in our office where recovered property was weighed. I cannot say who brought the weighing machine on the spot.”

PW-3, Zahoor Ahmed Kiyani, also stated that “Thereafter weighing scale was brought there and recovered charras was weighed.” Thus, there is a clear contradiction in the deposition of PW-1 and PW-2 and 3 as while the former stated that the seized charras was weighed at the KPT scale “available at the distance of 100 paces” and did not say that the same was brought to the office of the Customs Department but the remaining two PWs stated that the weighing scale was brought to their office which clearly contradicts the statement of PW-1 that the seized charras was weighed in the office of KPT.

8. As regards the taking out of sample from the recovered contraband items and sending the same to the Chemical Examiner, PW-1 M.M.A. Ejaz, at page 56, stated that “Out of the recovered charras, I drew three samples each weighing at One Kilogram. Thereafter the samples as well as recovered charras were sealed separately.” However, at page 5 in his further examination in Chief, he stated that “I also produce two samples drawn from the recovered property as article ‘D/1’ ‘D/2’, but did not give any explanation about the third sample. This explanation is provided by PW Azhar Mehdi, who stated in his deposition on page 88 of the paper book that “only one sample was sent to the Chemical Examiner for his report, and the other two samples were not sent there for report.” About sending of the samples drawn from alleged contraband items to the Chemical Examiner PW-1, M.M.A. Ejaz has stated, “I had myself taken the sample to the office of Chemical Examiner for his report after about two months of the incident. It is a fact that for two months the property remained in the custody of department/warehouse…. It is a fact that from 23/6/2003 to 28/6/2003 i.e. till the deposit of recovered property in warehouse, it remained in my possession for 4/5 days.” It is a trite law that whenever there is an unexplained delay in sending the samples to the Chemical Examiner, serious doubts are created which weakens the case of the prosecution. Reference in this regard may be made to the following reported judgments:

1. PLD 2007 Kar. 555,

2. SBLR2007 Sindh 460,

3. PLJ 2000Cr.Cases 921,

4. 2005 AC 1017,

5. 2007 P.Cr.LJ 680,

6. 2005 P.Cr.LJ 2030,

7. 2009 P.Cr.LJ 50, and

8. 2008 YLR 2958.

It is also worth mentioning that investigation of this case was entrusted to SPO Azhar Mehdi on 28/6/2003 and the case file containing FIR, Mushirnamas etc. was also handed over to him. But, in his deposition Exh.10, he stated that the samples were sent to the Chemical Examiner by the seizing officer. PW-1, M.M.A. Ejaz further admits that no samples were drawn from each rod and that while sealing the recovered charras he did not obtain signatures of any mashir. As per Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, samples are to be dispatched for analysis under the cover a memorandum specified in Form I “at the earliest, but not later than seventy-two hours of the seizure.” In the present case the sample was not sent within the specified period but was sent after two months of the seizure and that too not by the I.O. of the case but by M.M. A. Ejaz who was no more connected with the case as he had already entrusted the investigation to PW-3 Azhar Mehdi. There is also no attempt on the part of the prosecution to explain this undue delay in sending the sample to the Government Analyst. This, in our view, is a clear violation of provision of Rule 4(2) of the above Rules.

9. There is also contradiction with regard to the recovery of the alleged contraband items as PW-2 in his deposition stated that “One carpenter and labourer were brought at the office and with their help, the secret cavities of the truck were opened.” However, PW-3, who like PW-2 is also a mashir in this case, stated that “Mechanic/labourer to open the secret cavities of the truck was called by Mr. Ejaz”, however, PW-3 stated that “The concealed cavities were opened with the help of a labour who opened the same with the help of hamar [hammer] and screw driver.”

10. There is also contradiction in the depositions of the PWs with regard to the distance of Nakabandi from the Toll Plaza. While PW-1, M.M.A. Ejaz stated in his deposition that the Nakabandi was held at about 3/4 kilometers ahead of Toll Plaza, while PW-3, Zahoor Ahmed Kiyani, stated, “We held Nakabandi on that date at the distance of about half kilometer from Karachi Toll Plaza.”

11. Apart from the above, we have also noted that there are a number of lapses on the part of the I.O. e.g. it is admitted by the I.O. Azhar Mehdi that investigation of the case was entrusted to him on 28/6/2003 but still he did not send the samples to the chemical examiner himself rather the same were sent by the seizing officer, who was no more connected with the investigation of the case, to the Chemical Examiner and that too after a lapse of two months. Even the custody of the seized goods was neither formally handed over to the I.O. nor any letter was written by the I.O. for forwarding the samples to the Chemical Examiner. It is also worth mentioning that though the case was registered on 23/6/2003 but it was not entrusted to I.O. till 28/3/2003. The I.O. of the case also admitted that 164 Cr.P.C. statements of the accused were not recorded and that the I.O. of the case had not visited the place of incident. It is also unexplained that when three samples were drawn why only one sample was sent to the Chemical Examiner and that too after a lapse of two months. Athough both the mashirs belonged to the Customs Department but this fact was not disclosed in any of the mashirnama and the private addresses of the mashirs were given in the mashirnamas giving an impression as though they were private persons.

12. It is an admitted fact that appellant Meharban was driving the said truck while the other appellants were sitting with him in the driver’s cabin. Admitedly, none of them was the owner of the truck. As per the deposition of the I.O. of the case, he wrote a letter to ETO of Hub Chowki, Lasbella for confirmation of the ownership of the truck and the ETO, Lasbella, informed him that the owner of the truck is Gul Khan. The said ETO also supplied a photo copy of NIC of the said Gul Khan as well as other registration documents to the I.O. The I.O. also obtained copy of the application form submitted by said Gul Khan for obtaining NIC. However, no serious efforts were made to arrest the owner of the truck Gul Khan. Admittedly, all the attempts made for arrest of Gul Khan were made at his temporary address and no effort was made to arrest him from his permanent address.

13. As per the deposition of the I.O., at page 89 of the paper book, the truck involved in the case started its journey from Al-Burak Petrol Pump but it is again admitted by the I.O. that he did not record statement of any person from the said petrol pump. A little effort at the petrol pump would have revealed whether owner of the truck Gul Khan was present at the petrol pump before the truck started its journey, whether any repairs work was carried out by any of the appellants at the said petrol pump which would have clarified whether they were involved in concealing the contraband items in the secret vaults of the truck.

14. It is again trite law that the prosecution is required to establish the guilt of an accused person beyond any shadow of doubt by bringing trust worthy, convincing and cogent evidence for making out a case for conviction of the accused, especially if the contraband articles are not recovered from the person of the accused and were found concealed in the truck as in such case mere presence of a person, in our opinion, would not be enough to record conviction against him. It is an admitted fact that none of the appellants was the owner of the truck, no objectionable material was recovered from their personal search and no contraband item was recovered from the cabin of the driver. It is yet a trite law that mere presence of a person in a vehicle is not enough to convict him for conscious possession of the contraband articles as it is to be shown that such person was in conscious possession of the contraband articles.

In this regard reference may also be made to the following reported judgments:

1. PLD 1995 SC 516,

2. 2006 P.Cr.LJ 516,

3. PLD 2008 Cr.Cases Peshawar 14,

4. 2008 MLD 797.

15. It would not be out of place to mention here that in the decision reported as 2010 SCMR 927, the Hon’ble Apex Court has elaborately discussed the word “possession” as mentioned in section 6 of the Control of Narcotics Substance Act, 1997.

16. In an unreported judgment, authored by one of us, namely, Irfan Saadat Khan, J, bearing Criminal Appeal No. 229 of 2009, the role of a driver of a vehicle from which contraband articles have been recovered, has been discussed as under:

“We have noted that learned Sessions Judge has primarily convicted the appellant on the sole ground that as he was the driver of the bus hence he alone is responsible for the entire episode. We are afraid we do not subscribe to his view as this Bench in the decision given in Cr. Jail Appeal No.D-02 of 2009 comprising of one of us namely Muhammad Ather Saeed, J, while discussing the role of the driver as for as possession of narcotics and arms is concerned has categorically observed as under:

"The key question that therefore requires determination is whether the Appellants could, on the facts as found by the CNS Court, be regarded beyond reasonable doubt as having possession of the charas. The charas was not found in the actual physical possession of either of the Appellants. The question therefore is whether it was established beyond reasonable doubt that the Appellants knew or must be regarded as having known that the charas was in or on board the truck. If so, then the Appellants would have had possession of the charas within the meaning of section 6, and since the truck was moving from one place to another, the Appellants would be regarded as transporting the drug.

In our view, for the reasons herein after stated, the answer to the above question must be in the negative. Neither of the Appellants was the owner of the truck. They were simply its driver and his helper. The charas itself was not lying in the truck in an open or easily accessible place or manner, e.g., in the back of the truck or under the driver's seat (whether openly or in a locked container or box). (In Shah Wali and another v. The State PLD 1993 SC 32, the heroin was found wrapped in a plastic and cloth envelop which was lying on the passenger seat of the car, while in Ghulam Qadir v. The State PLD 2006 SC 61, the prohibited substance was found lying openly in eight sacks on the roof the coach. In both cases, the appeals of the convicted accused were dismissed.) In the present case however, the charas was hidden in a secret compartment inside the body of the truck (near the petrol tank). This secret compartment was not pointed out or revealed by either of the Appellants, but was located upon a search of the truck's body by the excise officers. The compartment had to be opened with the help of a hammer, i.e., it was locked or sealed in some manner. Although the Appellants were searched, the record does not show whether any key or other tool to open the compartment was found on their person or in the truck. The charas was in packets of one kg. each, and each kilogram was wrapped in plastic. The record does not show whether any attempt was made to determine whether Appellants had handled the packets. For example, the packets could have been dusted for fingerprints for comparison with the fingerprints of the Appellants. If such an exercise had revealed a match with either (or both) of the Appellants, that would have established that they had handled the packets, e.g., while placing them in the secret compartment. These are just a few factors which come readily to the mind of any reasonable person when considering the question whether the Appellants knew or could be regarded as knowing that the charas was on board the truck. No doubt a professionally trained team, carrying out a properly conducted search, could think of many more ways of connecting the Appellants with the charas in a legally relevant and permissible manner. No such method was however, adopted nor was any such exercise carried out. There is also nothing on the record to show the destination of the truck or the duration of the journey; the only thing that is established is that the truck was coming from Sukkur side. (In Nadir Khan and another v. The State 1988 SCMR 1899, it was held that the person in charge of a vehicle on a long journey (in that case, from Peshawar to Karachi) can be saddled with knowledge of the contents of goods being carried in the vehicle.) In our view therefore, it cannot be said to have been established beyond reasonable doubt that the Appellants knew or could be regarded as knowing that the charas was in or on board the truck. This is so notwithstanding the existence of other facts that could be said to point in the opposite direction. For example, the truck sped away instead of stopping when signaled to do so, and the secret compartment was located near the petrol tank. These facts can reasonably raise a suspicion. However, suspicion is not proof, and it is certainly not proof beyond reasonable doubt.

The CNS Court observed, while assessing the evidence, that "a huge quantity" of charas was "recovered from the truck which was in exclusive possession" of the Appellants. It also observed that there was no material inconsistency between the testimonies of the two prosecution witnesses. With respect, the CNS Court has missed the point and committed a fundamental legal error. Even if the testimony of the witnesses is consistent, the question always is whether the facts proved thereby establish the offence beyond reasonable doubt. For this purpose, the nature of the offence and its ingredients or elements need to be clearly understood and kept in mind. It is only then that the court will know what needs to be proved, and thereby be able to assess whether what is in fact proved at the trial establishes the offence beyond reasonable doubt. In the present case, it appears that the CNS Court has simply equated the "excusive possession" of the truck with possession (and hence transportation) of the charas discovered on board the truck. However, for the reasons given above, this equation is incorrect and does not follow automatically or inevitably. Even the conclusion that the truck was in the Appellant's "exclusive possession" is not accurate. No doubt the Appellants were the only persons in the truck when it was intercepted by the excise officers. But that does not automatically establish that the truck was in their exclusive possession (or indeed, in their possession at all) when the charas was placed in the secret compartment, or that they knew or must be regarded bey ond reasonable doubt as knowing that the charas was on board the truck. The CNS Court has simply jumped to a conclusion and made an assumption that is not warranted or supported by the facts as proved before it. This is a fundamental and fatal legal error.

In our view therefore, there is reasonable doubt whether the Appellants could be regarded as having possession of the charas within the meaning of section 6 as explained above. There is thus also reasonable doubt as to whether the Appellants could be regarded as transporting the charas within the meaning of the said section. Their conviction under section 9 of having committed an offence under section 6 is therefore also unsound and unsustainable in law."

17. Mr. Umar Hayat Sindhu, learned DAG appearing for the State, though relied upon a number of cases but the facts of those cases are found to be quite distinguishable to the present case.

18. The upshot of the above discussion is that we allow this appeal, set aside the conviction and sentence passed against the appellants and acquit them of the charge framed against them. They should be set at liberty forthwith if not required in any other case.

Judge

Karachi, the -08-2010. Judge