IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
PRESENT MR. JUSTICE IRFAN SADAAT KHAN J;
MR. AFTAB AHMED GORAR J;
Criminal Appeal No.D-265 of 2010
Appellant : Muhammad Saleem s/o Muhammad Umar Pathan through Mr. Ilumuddin Khatak Advocate.
Cr. Jail Appeal No.D-304 of 2010
Appellant 1. Sharif Taj s/o Sher Nawaz 2. Riaz Mian s/o Khoj Mian 3. Adeel Sher s/o Umar Sher through Mr. Ilumddin Khatak Advocate
Cr. Appeal No.D-315 of 2010
Appellant Adil Sher s/o Umar Sher Pathan through Mr. Ilumddin Khatak Advocate.
Respondent : The State through Mr. Amjad Ali Sahto Special Prosecutor ANF
Date of hearing: 05.03.2013.
Date of decision 05.03.2013
J U D G M E N T.
AFTAB AHMED GORAR,J- Through this single Judgment we intend to dispose of the above three appeals preferred against the same Judgment. The appellants were tried by the learned Special Judge C.N.S Hyderabad and were convicted u/s 9-C of Control of Narcotic Substances Act, 1997 to suffer imprisonment for life and to pay fine of Rs.200,000/-, each in default whereof, to suffer R.I. for six months. They were also given benefit of section 382-B Cr.P.C.
2. Brief facts of the prosecution case are that on 27.05.2008 the complainant Inspector Muhammad Muzamil Ahmed of ANF Hyderabad on receipt of spy information regarding smuggling of narcotics from Peshawar to Karachi in Bus No.LXX-6395, constituted a raiding party, came at Ayub Restaurant Hyderabad. The complainant party held Nakabandi on National Highway during which the aforementioned Bus came and they stopped it. The complainant party apprehended the person pointed out by the spy, who disclosed his name as Sharif Taj, driver, second driver and conductor disclosed their names as Muhammad Saleem, Riaz Mian and Adil Sher respectively. On the pointation of accused Sharif Taj, complainant recovered four boxes, 3 zinc boxes, two gunny sacks and one nylon sack. On opening of the same, complainant recovered 420 kilograms of charas and 17 kilograms of opium in shape of different packets in presence of mashirs. All the above named accused were arrested. From personal search of accused Sharif Taj, complainant recovered a 30 bore pistol alongwith 8 live rounds and a magazine, NIC and cash Rs.3000/-. From personal search of accused driver Saleem, driving license, NIC, cash Rs.1000/-, a mobile phone with sim card were recovered. From accused Riaz Mian complainant recovered a driving license, NIC and cash Rs.9000/-, two mobile phones. From accused Adil sher complainant recovered a mobile phone alongwith sim card. Complainant prepared mashirnama of arrest and recovery in presence of mashirs and then brought the accused and property at Police Station and lodged the report.
3. Formal charge was framed against the appellants at Ex.2, to which they did not plead guilty and claimed to be tried vide their pleas at Ex.2/A to 2/E.
4. In order to prove its case, prosecution examined P.W.1 complainant Muhammad Muzamil Ahmed at Ex.4. He produced mashirnama at Ex.4/A, FIR at Ex.4/B, letter to Chemical Examiner dated 29.05.2008 at Ex.4/C, chemical report at Ex.4/D and roznamcha entry at Ex.4/E. P.W.2 HC Rahim Bukhsh was examined at Ex.5. Thereafter prosecution closed its side.
5. The statements of appellants were recorded u/s 342 Cr.P.C at Ex.8 to 11 respectively, wherein they denied the prosecution allegations and pleaded their innocence. However, neither they examined themselves on oath nor led any defence evidence. On the application of the appellants that they were not represented by their counsel, again opportunity was given to them and after closure of prosecution side, their statements were recorded u/s 342 Cr.P.C and they repeated the same statements as given earlier. This time too, they neither examined themselves on oath nor led any defence evidence.
6. The learned trial court after hearing the parties and appraising the evidences convicted the appellant as mentioned above.
7. Learned counsel for the appellants argued that the appellants are innocent and have falsely been implicated in the present case. He submitted that alleged incident took place at a thickly populated area but no independent person has been cited as witness. Learned counsel further submitted that there are material contradictions in the evidence of both the prosecution witnesses which created doubt in the prosecution and it is a well settled law that if a single circumstance creates doubt, its benefit goes to the accused, but the learned trial court did not consider the same. He added that if the appellant Sharif Taj had admitted his guilt regarding possession of the narcotics, why the rest of the appellants being driver, second driver and conductor having no knowledge of the alleged narcotic substance, were implicated in the case. He further submitted that the alleged narcotic substance was not recovered from exclusive possession of the appellants. Learned counsel next submitted that neither description of alleged narcotics was given in the mashirnama or FIR nor such questions were asked to the appellants in their statements u/s 342 Cr.P.C. He submitted that impugned Judgment is the result of non-reading and misreading of the evidence and is liable to be set aside. Learned counsel further contended that prosecution has failed to bring independent and trustworthy evidence against the appellants to prove charge against them, therefore, their conviction is liable to be set-aside. In support of his arguments, learned counsel has relied upon the case of Ghulam Hussain and 9 thers Vs. The State (2011 P Cr. L J 72), Muhammad Janas and another Vs. The State (2010 SCMR 1016), Gul Raeef Khan Vs. The State (2008 SCMR 865), Shahzada Vs. the State (2010 SCMR 841), Abdul Rehman Vs. The State (2011 SCMR 965), Muhammad Noor and others Vs. The Stte (2010 SCMR 927), Iqbal Khan Vs. The State (2012 P Cr. L J 1524) Meharban and 2 others Vs. the State (2011 P Cr. L J 8).
8. On the other hand, learned Special Prosecutor ANF supported the impugned Judgment and argued that prosecution has proved the charge against the appellants beyond any shadow of doubt. He further contended that a large quantity of narcotic substance was being transported by the appellants in a Bus, which was got stopped by the complainant party. He further submitted that appellants were arrested from the said Bus and on the pointation of the appellant Sharif Taj, charas and opium in a large quantity were recovered from the roof of the Bus and all the appellants were in knowledge about the transportation of the said narcotic substance. He further contended that the prosecution established that the recovered narcotic substances were secured from the possession of the appellants but the appellants failed to prove their innocence. He added that both the witnesses have fully supported the prosecution case and there is no major contradiction in their evidence. He prayed for dismissal of the appeal. He has relied upon the case of Ghulam Qadir Vs. The (PLD 2006 SC 61) and Kashif Amir Vs. The State (PLD 2010 SC 1052).
9. We have heard the learned counsel for the parties and examined the record carefully. The complainant in his evidence deposed that on 27.05.2008 on receipt of spy information that accused Sharif Taj was smuggling the narcotics from Peshawar to Karachi in Bus No.LXX-6395, left P.s. and came at Ayub Restaurant National Highway on the road leading towards Hala. He further deposed that at about 1500 hours, they noticed pointed Bus coming from Hala side and got it stopped. They apprehended the person sitting on a front seat pointed by the spy. He disclosed the details of recovery of charas and opium from the boxes kept on the roof of the Bus, on the pointation of the appellant Sharif Taj. The complainant further deposed that he took 10 grams from each packet and sealed the same for chemical examination and sealed the remaining narcotics in the same boxes. There appear no infirmity in the evidence of the complainant.
10. The P.W.2 mashir has supported the prosecution case by deposing that the recovery of the charas and opium was effected on the pointation of the appellant Sharif Taj, in presence of other appellants and was weighed in his presence and in presence of co mashir. He fully supported the prosecution case and did not commit any error in connection with the arrest of appellants and recovery of the charas and opium from the Bus on the pointation of the appellant Sharif Taj.
11. Inspite of lengthy cross-examination, the defence counsel failed to shatter the evidence of both the witnesses and they remained in line with each other. We do not see any infirmity or omission in the depositions of the witnesses. Learned counsel could not pin point any contradiction in the evidence of the witnesses. Though huge quantity of narcotic substances was involved in the present matter but the complainant and P.W. did not differ or contradict with each other in respect of number of packets, weight of the charas and opium as well as manner in which the same were recovered. Learned counsel for the appellants could not prove any enmity or ill will against the P.Ws to have deposed against the appellants falsely. At the time of recovery, the mashirnama was prepared at the spot with signatures of the mashirs and P.W.2 mashir verified the same to be true and to have been prepared at the spot. The departure of the complainant party was also proved by production of the entry and there is no material to make the departure of the complainant doubtful.
12. So far the contention of learned counsel with regard to non-association of private mashirs is concerned; it is worth to mention here that section 103 has been excluded under section 25 of of Control of Narcotic Substances Act, 1997. It was not necessary for the complainant to join any private person to witness the proceedings. This ground therefore, does not carry any weight in the eyes of law.
13. The ocular testimony has duly corroborated by the mashirnama of arrest and recovery prepared at the spot in presence of mashirs, entry of the departure of the complainant and chemical report. The chemical report reveals that parcels received from the complainant were found to be charas and opium respectively. Both the P.Ws deposed that 10 grams were taken from each packet and all the parcels were sent to the Chemical Examiner and the learned defence counsel has not denied such fact.
14. In the case of Ghulam Hussain and 9 others Vs. The State (supra), it was observed that no shape of description of the charas had been mentioned in the mashrinama. FIR was totally silent as regard to the drawing of the sample or sending the same for chemical examination. In the present case, the mashirnama as well as FIR disclose full description of the charas and opium as well as about taking sample from each packet and sealed for chemical examination.
15. In the case of Muhammad Janas and another Vs. The State (supra), it was held that huge quantity of charas and opium had been recovered by police from a vehicle parked with two tyres burst; it was further observed that accused, though named in the FIR but it was not known as to who had provided their names to the complainant police officer. In the present case, the appellants were traveling in the Bus and they were arrested in the Bus and in their presence and pointation of appellant Sharif Taj huge quantity of charas and opium was recovered, therefore, this case is not helpful to the appellants.
In the case of Gul Raeef Khan Vs. the State (supra), reduction of sentence was sought and counsel for the State had raised no objection to the reduction of sentence. In the present case huge quantity of narcotic substance is involved and in view of strong evidence available against the appellants, the question of reduction of sentence does not arise.
In the case of Shahzada Vs. The State (supra), it was observed that driver of the car had escaped and police recovered 180 Kilograms of charas and one kilogram of opium from Digi of the Car. Accused were simply sitting in the car. No evidence was led by the prosecution to show that the accused had knowledge of the narcotics lying in the car or they had abetted or conspired with the driver in the commission of the crime. Property in question was neither lying open in the car within the view of the accused, nor they knew about the placement of the same therein. Accused, therefore, was not even required to explain their position as required under Article 122 of Qanoon-e-Shahadat Order and they could not be held responsible and in joint possession of the narcotics with the Driver. It was observed that the prosecution case was highly doubtful and the accused were acquitted. In the present case, the boxes were lying on the roof of the Bus and all the appellants had knowledge about the same. One of the appellant was owner, others were driver, second driver and conductor of the Bus respectively while appellant Sharif Taj was sitting in the Bus and on his pointation, the charas and opium were recovered.
In the case of Abdul Rehman Vs. The State (supra), the accused had sought reduction of sentence while not pressing their appeal on merits and such reduction was conceded by the learned Prosecutor General, therefore, conviction was reduced. In this case, the appellants were transporting huge quantity of narcotics and there was no request by the learned counsel with regard to not pressing the appeal on merits, therefore, this case is distinguishable from the present case.
In the case of Muhammad Noor and others Vs. The State (supra), it has been observed as under:-
S.29---Qanun-e-Sahadat (10 of 1984), Arts. 117 & 120--- Possession of illicit articles---Presumption--- Onus to prove--- Duty is caste upon the Court to presume in trial under Control of Narcotic Substances Act, 1997, that accused has committed an offence under the Act, unless contrary is proved. If the case is of possession of narcotic drugs than first prosecution has to establish the fact that narcotic drugs were secured from the possession of accused then court is required to presume that accused is guilty unless accused proves that he was not in possession of such drugs. It is necessary for prosecution to establish that accused has direct relationship with narcotic drugs or has otherwise dealt with it. If prosecution proves detention of articles or physical custody of it then burden of proving that accused was not knowingly in possession of article is upon him. Practical knowledge of accused must have made Legislature think that if onus is placed on prosecution the object of Control of Narcotic Substances Act, 1997 would be frustrated. Prosecution, by virtue of S.29 of Control of Narcotic Substances Act, 1997, has only to show by evidence that accused has dealt with narcotic substance or has physical custody of it or directly concerned with it, unless accused proves by preponderance of probability that he did not knowingly or consciously possess the article and without such proof accused can be held guilty by virtue of section 29 of Control of Narcotic Substances Act, 1997.
In the present case, the prosecution has proved that charas and opium were recovered from the possession of the appellants and the appellants have failed to prove themselves as innocent. This case is therefore, helpful to the prosecution rather to appellants.
In the case of Iqbal Khan Vs. The State (supra), allegation against accused was that he was the guard (chowkidar) of a go down from which 5000 kilograms of charas was recovered which had been locked in a container. It was held, that persons nominated in the FIR for attempting to smuggle the narcotics had not been arrested. Neither anything was recovered from the accused who was a chowkidar of the godown nor on his pointation, the narcotic was recovered from hidden cavities of the container. In the present case the appellants were in knowledge of the charas and opium kept on the roof of the Bus which was driven by one of the appellant while other appellants were the owner, second driver and conductor respectively. Besides this, on the pointation of appellant Sharif Taj, recovery of charas and opium in hue quantity, was affected, therefore, this case is not helpful to the appellants.
In the case of Mehrban and 2 others Vs. The State (supra), it was held that unexplained delay of two months in dispatch of the sample cast serious doubts on the prosecution case and contradictions between the prosecution witnesses was evidence. No such situation appears in the present case.
16. We have examined impugned Judgment passed by the learned trial court and evidence produced by the prosecution carefully. The defence has not denied the recovery of contraband items from the Bus on 27.05.2008, when it was intercepted by the ANF Authorities and according to its version, the narcotic substances were recovered from the roof of the Bus. Learned counsel emphasizes that a driver and conductor cannot be held responsible for transporting contraband articles if they were lying openly on the roof of a Bus and at the best their responsibility would start only when the contraband items i.e. narcotics etc had been recovered from the designed cavities of Bus.
17. Under section 29(d) of the Control of Narcotic Substances, Act, 1997, unless otherwise proved, presumption would be that an accused has committed an offence under this Act in respect of any material which have undergone any process towards the production or manufacture of narcotics, drug, psychotropic 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. Presence of the appellants being owner, driver, second driver and conductor of the Bus respectively is not denied as it is evident from the material available on record they were arrested from the spot in presence of mahirs. In as much as recovered articles were lying openly i.e four boxes, 3 zinc boxes, two gunny sacks and one nylon sack on the roof of the Bus, which would be in the knowledge of the appellants. Reference in this behalf may be made to the case of Muhammad Vs. The State (PLD 1984 SC 278), Said Shah Vs. The State (PLD 1987 SC 288), Nadir Khan Vs. the State (1988 SCMR 1899), Shaharzada Vs. The State (1993 SCMR 149), Shah Wali and another Vs. The State (PLD 1993 SC 32), Rab Nawaz Vs. The State (PLD 1994 SC 558), Ikram Hussain Vs. The State (2005 SCMR 1487),
(i) Muhammad Shah Vs. The State (PLD 1984 SC 278). In this case driver was found guilty for the commission of keeping in his possession prohibited items under the provisions of Prohibition(Enforcement) of Hadd) Order 1979. (ii), Said Shah Vs. The State (PLD 1987 SC 288). In this also driver was convicted and sentenced holding that prohibited items were being transported in the vehicle, which were in the control and possession of the convict. In the said Judgment it was also held that fixing responsibility upon the driver for transporting narcotics/drugs depends on each case. (iii) Similarly in case of Nadir Khan Vs. the State (1988 SCMR 1899) it was held that licensed drivers having charge of vehicle for long journey supposed to have knowledge with regard to the contents and articles being transported in it. (iv), In another Judgment in the case of Shahzada Vs. The State (1993 SCMR 149), the liability of driver for transportation of the contraband items was viewed under the provision of section 27 PPC (v) In the case of Shah Wali and another Vs. The State (PLD 1993 SC 32), Charas was recovered lying in front of passenger seat of a car occupied by two persons, therefore, it was held that heroin was in possession of the accused persons including driver, therefore, later was found guilty and was convicted. (vi), In the case of Rab Nawaz Vs. The State (PLD 1994 SC 858), driver was convicted for possessing illicit articles (vii), In the case of Ikram Hussain Vs. the State (2005 SCMR 1487), sentence was confirmed in respect of the driver of a car in which narcotic was transported.
18. In the case of Muhammad Vs. The State (2010 SCMR 927) and in the case of Kashif Amir Vs. The State (PLD 2010 SC 1052) it has been held that driver on the driving seat of the vehicle shall be held responsible for transportation of narcotics, having knowledge of the same, as no condition or qualification has been made in S.9(6) of the Control of Narcotic substances Act, 1997 that the possession should be an exclusive one and can be joint one with two or more persons, when a person is driving a 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. In the present case position is the same, one of the appellants namely Sharif Taj is the owner of the Bus and Muhamamd Saleem was driver while Riaz Mian and Adil sher were second driver and conductor of the Bus respectively. They all were in knowledge that what was lying in the boxes on the roof of the Bus, therefore, they are in our view equally responsible for the transportation of the said narcotic substances.
19. Keeping in view the pronouncement made in reported Judgments of the Honourable Supreme Court, we are of the view that the appellants being owner, driver, second driver and conductor of the Bus cannot be absolved from the responsibility if the contraband items were being transported openly on the roof of the Bus, which according to the facts and circumstances of the case appears to be in their knowledge.
20. The appeal has been dismissed vide our short order dated 05.03.2013, above are the reasons thereof.