Cr.Appeal No.D- 146 of 2010.
Present.
Mr.Justice
Ahmed Ali Shaikh.
Mr.Justice
Salahuddin Panhwar.
Appellant Nazar Hussain through M/s.Ghulam Shabir Dayo, Abid Hussain Bhutto Advocates.
Respondent The State through Mr.Zulifquar Ali Jatoi DPG.
Date of Hearing 18.10.2012.
J U D G M E N
T.
-
SALAHUDDIN PANHWAR,J.- By this criminal appeal the appellant has
assailed the Judgment dated 09.02.2010, passed by the Special Judge (CNS),
Sukkur in Special Case No.48/2009,(Re.The State v Nazar Hussain), arising out
of Crime No.03/2009 Excise Police Station, Rohri registered for an offence
under Section 9(c) Control of Narcotic Substance Act, 1997, whereby convicting
the appellant under Section 9(c) of CNS Act, 1997 and sentenced him to suffer
R.I for life and to pay a fine of Rs.500,000/- and in default thereof to suffer
R.I for two years more. However, benefit of Section 382-B, Cr.P.C was also
extended in favour of the appellant.
2. Relevant
facts leading to this appeal are that on 25.6.2009 Inspector Ghous Bux Mahar of
Excise Circle, Rohri alongwith EJ Zarar Ahmed, ED Abdul Majeed, EC Jan
Muhammad, EC Khumar Ali, EC Syed Akhtiar
Shah, EC Muhammad Akhtar, EC Muhammad Azam, EC Moula Bux and EC Maqsood Ahmed
Shah left in the official vehicle vide entry No.27 to detect the narcotic
related crimes. They went to National Highway near Tando Boraho where at about
12 noon they signalled a truck,having registration No.TKD-591, coming from
Punjab side, to stop but the driver instead accelerated its’ speed in a bid to
flee away. However, it was got to halt and was found being driven by the
present accused Nazar Hussain while it’s’ cleaner managed to slip away. The
accused/driver was brought down, on enquiry, disclosed his name as Nazar
Hussain son of Muhammad Nawaz by caste Jota resident of village Jota Kassi,
tehsil Kabeerwala, district Khanewal and gave the name of the run-away cleaner
as Yousif Ali on his bodily search, his identity card, driving licence, a bilty
dated 23.6.2009, mentioning the load of 221 chipboards, and a sales tax
invoice, secured from him. The load was covered under a tarpaulin. The Excise
officials checked the chipboards from which ultimately 65 (sixty five) plastic
bags of charas were found which were concealed in the cavities made therein. On
opening, each bag was found containing 40 (forty) packets and each packet,
comprising of 2(two) patties of 1(one) K.G of charas and thus 80(eighty)
patties from each bag making a total of 2600 K.Gs of charas were recovered.
Thereafter 1(one) packet/K.G from each bag was taken as sample and thus
65(sixty five) packets/K.Gs were separated for the chemical analysis while all
the remainder was sealed back in the same bags separately as the case property.
Accused Nazar Hussain was formally arrested under a mashirnama attested by EJ
Zarar Ahmed and ED Abdul Majeed, case was registered against him on behalf of
the State.
3. After
usual investigation, the case was challaned, charge was framed, the statement
of appellant under Section 342 Cr.P.C, was recorded and thereafter accused
recorded his statement on oath and also lead
two defence witnesses Muhammad Iqbal and Ghulam Nabi.
4. To
substantiate its case prosecution examined PW 1 complainant Inspector Ghous Bux
Mahar as Ex.6 who produced copy of roznamcha entry, mashirnama of
arrest/recovery, besides identity card, driving license, bilty and sales tax
invoice recovered from the accused, and copy of the FIR and report of the
Chemical Examiner as Exb-6-A to 6-B, while PW 2 mashir EJ Zarar Ahmed was
examined as Ex.7 where-after its side was closed by the Special Public
Prosecutor. Thereafter the conviction was recorded as above.
5. Learned
counsel for the appellant have inter-alia contended that the place of
occurrence was a thickly populated area but police has not made any attempt to
associate an independent person to act as witness or mashir; it is alleged that
the recovery was effected from the truck but I.O has not brought on record
about the ownership of the said truck; allegedly the appellant was driver and
the recovery was effected from chipboard lying in the truck and secrete cavity
of the said truck, therefore, the recovery has not been effected from the
exclusive possession of the appellant; that the prosecution has failed to bring
on record that the appellant was having knowledge regarding the charas which
was available in the said truck and he has relied upon the case law reported as
Tariq Pervez versus The State (1995 SCMR
1345), Muhammad Noor and others versus The State (2010 SCMR 9270), Muhammad Imran
versus The State (2011 SCMR 1954) and Abdul Rehman versus The State (2011 SCMR
965).
6. Conversely
the learned DPG appearing for the State has argued that there is no material
contradiction in the testimony of PWs; huge quantity of 2600 K.Gs of charas was
recovered and same cannot be said to be foisted upon the appellant during the
length cross examination nothing has brought on record regarding any contradiction
or any enmity of the appellant with the PWs; conviction recorded by the trial
Court is very much correct and is based on proper appreciation of evidence. He
has relied upon case of Muhammed Noor v The State (2010 SCMR 921).
7. Heard
learned counsel for the parties and perused the material available on record.
8. We
have examined the evidence, case law and have considered the contention of the
learned counsel. Before drawing inference, it will be conducive to examine the
case law relied upon by both the parties.
In the case of Tariq Pervez v The State
(1995 SCMR 1345) it is held that:-
“The concept of benefit of doubt to an
accused person is deep-rooted in our country. For giving him benefit of doubt,
it is not necessary that there should be many circumstances creating doubts. If
there is a circumstance which creates reasonable doubt in a prudent mind about
the guilt of the accused, then the accused will be entitled to the benefit not
as a matter of grace and concession but as a matter of right”.
In the case of Amanat Ali v The State (2008
SCMR 91) in which it is held that:-
“6. The case of Amanat Ali, appellant, being
driver and owner of vehicle, would stand on different footing as he being in
the exclusive control of the vehicle in which heroin was kept in secret
cavities, would be deemed to have been in the exclusive possession of the
heroin recovered from the car, therefore, the charge against him stood proved
beyond doubt”.
In case of Muhammed Noor, (supra), it is
held that:--
“It is necessary to show that the accused
had the article, which turns out to be narcotics drugs. In other words the
prosecution must prove that the accused was knowingly in control of it”.
It is
further held that:--
“Keeping in view the principles of law, the appellant,
Muhammed Noor is driver; he is in possession of the vehicle and also in
possession of the articles whatever lying in it. The allegation against the
appellant Muhammad Ramzan is that on his information secret cavities”.
9. We have also
examined the evidence lead by the prosecution, in comparison with the facts of
the cases referred above, in
evidence PW 1 Ghous Bux as Exb.6 has deposed that on 25.6.2009 he
alongwith his subordinate staff was available near Tando Boraho National
Highway. They signaled the truck to stop, but driver of the said truck
accelerated the speed ultimately they succeeded to halt it and found that its
cleaner managed to flee away, driver was available in the truck, thereafter
they started checking chipboards and found some drawers made in it in which
plastic bag was stuffed, the said bag was found containing charas and same were
counted which were 65, each bag was
stuffed with 40 packet and each packet having two patties of charas, thus 80 pattis of charas
were secured having total weight 2600 KGs. Mashirnama was prepared FIR was
lodged against the appellant.
10. PW Zarar
Ahemd has deposed in his evidence that on 25.6.2009 he alongwith Inspector
Ghous Bux Mahar and other subordinate staff was available near
11. We have drawn inference
that prosecution witnesses have furnished a straight forward and confidence
inspiring account and their evidence do
not suffer from any contradiction , discrepancy or inherent infirmity , even
there is nothing on record any suggestion regarding any enmity of appellant
with police officials. The connection of the appellant with Truck, has been established on the record , as he
was found on the driving seat, thereby
prosecution has proved its case against the appellant beyond any
reasonable shadow of doubt, and during lengthy cross examination no
contradiction was brought on record nor any major discrepancy found in the
prosecution evidence. And the facts of the case law relied by defence counsel are
not same, therefore same is not helpful in this case in favour of appellant,
moreover in case Muhammed Noor (supra), it is held that driver of vehicle is
equally responsible for the property available in the said vehicle, and same
view has been taken in case of Amanat Ali(supra).
12. Candidly huge
quantity of 2600 K.Gs charas, was recovered from the truck, which was driven by
the appellant and according to the evidence complete picture has been given regarding the manner of offence,
place of recovery, and 65 KGs charas
sent to the Laboratory for chemical examination on 26.6.2009 and the
same was received on the same day. According to chemical examiner’s report all
samples were containing charas. Therefore there is no doubt that the
prosecution has successfully beyond any shadow of reasonable doubt proved that
the recovery of such huge quantity was recovered from the appellant.
13. We have also examined
the evidence of appellant as DW 1 (Ex.9) and DW 2 Muhammad Iqbal (Ex.10) and DW
Ghulam Nabi (Exb.11) During the appreciation of their evidence no substantial
proof or material has been brought by them to disprove the prosecution case
therefore the impugned judgment is completely according to law and with
appreciation of evidence and in any manner cannot be counted that the same is
contrary to law.
14. As
discussed above we are in considered opinion that prosecution has succeeded to
prove its case beyond reasonable shadow of doubt, thus instant appeal is not
maintainable and liable to be dismissed consequently same is hereby dismissed.
JUDGE
JUDGE
Akber.