IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Appeal No.D-71 of 2011
Crl. Jail Appeal No.D-82 of 2011.
Present:
Mr. Justice Irfan Saadat Khan,
Mr. Justice Abdul Maalik Gaddi,
Appellants Muhammad Yousif Tunio and Mehboob Ali Brohi,
in Crl. Appeal through Mr., Altaf Hussain Surahio, Advocate.
D-71/11.
Appellant Sulleman Pathan, through Mr. Abdul Baqi Jan
in Crl. Jail Kakar, Advocate.
Appeal D-82/11.
Respondent The State through Mr. Imtiaz Ali Jalbani,
Assistant Prosecutor General.
Date of hearing: 11.12.2013. Date of Judgment: .12.2013.
J U D G M E N T.
Irfan Saadat Khan, J.- These criminal appeals arise out of the consolidated judgment dated 28.6.2011 passed by the Sessions Judge/Special Court (CNS), Jacobabad in CNS Case No.13/2010, whereby the appellants accused were found to be guilty under the offence punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997 (The Act) and convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.100,000/- each and in case of failure to make payment of fine each one of them would undergo S.I. for a period of six months more. However, the benefit under Section 382-B, Cr.P.C was given to the accused/appellants.
2. Briefly stated the facts of the prosecution as per F.I.R are that on 2.7.2010 Inspector Ahsan Ali Buledi, Incharge CIA Centre, Jacobabad alongwith his subordinate staff left CIA Centre vide roznamcha entry No.5 for patrolling and when reached at police picket Shambay Shah the vehicles, they met HC Zahid Islam and other police personnel and started checking. At about 12.00 a.m., (midnight) they noticed a Mazda Pickup No.JY-4464 coming from Balochistan side. The police party stopped it and found three persons available in it. On search the police secured ten sacks of green colour, which were opened and found containing charas. All the three persons were apprehended under a mashirnama in presence of mashirs HC Zahid Islam and HC Nabidad. On enquiry, the driver disclosed his name as Muhammad Yousif, other person disclosed his identity as Sulleman, while the third persons introduced himself as Mehboob and regarding the charas all the three persons disclosed that they have purchased it from Quetta and were taking away it for sale in different cities of Sindh. 30 patties were found in one sack, while in the remaining nine sacks 40 patties each were recovered, totaling to nine maunds and thirty kilograms. Each of the patties were found to be of one kilogram in weight and the complainant took out one patty from each sack as sample for chemical examination, while the remaining charas was also sealed separately in the same sacks. Thereafter, the mashirnama of arrest and recovery were prepared. During personal search of Sulleman, a currency note of Rs.1000/- was also secured. Then the accused and the property were taken to police station, where F.I.R of this case was registered.
3. Mr. Altaf Hussain Surahio, advocate, has appeared for the appellants, namely, Muhammad Yousif Tunio and Mehboob Ali Brohi, whereas Mr. Abdul Baqi Jan Kakar, advocate, has appeared on behalf of appellant Sulleman Pathan, while State was represented by Mr. Imtiaz Ali Jalbani, Assistant Prosecutor General.
4. Mr. Surahio read out the entire paper book comprising of charge, depositions of prosecution witnesses, namely, Mevo Khan, Zahid Islam, complainant Ahsan Ali, Ali Murad, so also the statements under Section 342, Cr.P.C of the appellants/accused.
5. The learned Counsel Mr. Surahio submitted that there are a number of contradictions and shortcomings in the evidence of P.Ws, which entitle the accused/appellants to be acquitted in the present case. While elaborating his viewpoint the learned Counsel submitted that the appellants, whom he is representing, are the driver and the cleaner of the vehicle in question. He pointed out following contradictions in the evidence of the prosecution witnesses:-
(i) Accused and property were brought at Police Station Saddar, Jacobabad by HC Zahid and HC Karim Bux. He states that this statement of P.W Mevo Khan available at page 41 of the paper book is in contradiction of the deposition of P.W Ahsan Ali, the S.P.O. Obauro, District Ghotki, which is available at page 57 of the paper book, who has stated that “Accused and recovery so made with mashirnama, then were dispatched to PS Saddar, Jacobabad through HC Nabidad and I myself went at CIA Centre Jacobabad, there I recorded entry in roznamcha as entry No.09.
(ii) The second contradiction pointed is with regard to the weight of the contraband items and submitted that perusal of page 45 and 53 of the paper book, would reveal a contradiction with regard to the weight of the contraband items.
(iii) He states that depositions of P.W-2 Zahid Islam, which is available at page 47 of the paper book would reveal that the weight disclosed by the said P.W is totally different from the weight as disclosed in the F.I.R and in the mashirnama, hence as per the learned Counsel this is a material contradiction.
(iv) The learned further states that perusal of page 49 of the paper book would reveal that it has been mentioned in the cross-examination of Zahid Islam that no vehicle was searched at the spot prior to the Mzada Truck, whereas a perusal of page 57 of the paper book would reveal that P.W Ahsan Ali has stated that 2/3 more vehicles were checked before the arrival of the truck in question.
(v) He further states that in the said deposition of Ahsan Ali Buledi at page 59 it is mentioned that “my statement was recorded by SIO during course of investigation after 2/3 days of the incident”. As per the learned Counsel, this statement is in contradiction with the statement given by Ali Murad at page 67 of the paper book in his deposition, wherein he has categorically statement that no 161, Cr.P.C statement of Ahsan Ali Buledi was recorded.
(vi) He further states that it has been mentioned at page 67 of the paper book i.e., the deposition of Ali Murad that “registration papers of vehicle or Bilty papers were given to him, which were not secured.” He states that this is a major blow on the part of the prosecution case as when admittedly the registration and Bilty papers were given to Ali Murad, why these were not secured, which creates doubt in the case of the prosecution.
6. Mr. Altaf Hussain Surahio further added that it is very strange to note that when a question with regard to Bilty papers was raised, why the Goods Company, which the goods loaded in the truck, were not party in the case. He further states that there is a delay in sending the sample and only 10 kilograms of the contraband material was sent for the chemical examination and not the whole material. He submits that in view of the above noted contradictions the appellants/accused are entitled to be acquitted. In support of his above contentions the learned Counsel has relied upon the following decisions:-
1. Syed Saeed Muhammad Shah v. The State, 1993 SCMR 550,
2. Tariq Pervez v. The State, 1995 SCMR 1345,
3. Iltaf Hussain v. The State, 1996 SCMR 167,
4. Muhammad Ilyas v. The State, 1997 SCMR 25,
5. Muhammad Mansha v. The State, 1997 SCMR 617,
6. Jamil Shah v. The State, 1997 SCMR 1494,
7. Javed Akhtar v. The State, 1998 P.Cr.L.J. 1462,
8. Allah Bakhsh v. Ghulam Rasool, 1999 SCMR 223,
9. State v. Nazir Ahmad, 1999 SCMR 610,
10. Jehangir v. Nazar Farid, 2002 SCMR 1986,
11. Muhammad Saeed v. The State, 2002 MLD 91,
12. Muhammad Irshad v. The State, 2002 P.Cr.L.J 1541,
13. Muhammad Azad v. Ahmad Ali, PLD 2003 SC 14,
14. Ghaus Bux v. The State, PLD 2004 Karachi 201,
15. Ansar-ul-Islam v. The State, PLD 2005 Karachi 146,
16. Muhammad Akram v. The State, 2009 SCMR 230,
17. Muhammad Jamil v. The State, PLJ 2010 Cr.C. (Lahore) 524,
18. Muhammad Aslam v. The State, 2011 SCMR 820,
19. Amjad Ali v. The State, 2012 SCMR 577.
7. Mr. Abdul Baqi Jan Kakar, appearing for appellant Sulleman Pathan, while adopting the arguments of Mr. Surahio, at the very outset states that the case of the appellant/accused Sulleman Pathan is entirely different from those of the appellants/accused represented by Mr. Surahio. He states that it is an admitted position that the appellants/accused represented by Mr.Surahio were the driver and cleaner of the said Mazda Truck, but the appellant/accused Sulleman Pathan is neither the driver, nor cleaner, but was a mere passenger, hence, according to him, same role could not be assigned to a passenger, as has been assigned to either a driver or a cleaner. Hence, according to him, the learned trial Court while convicting the appellant/accused has not considered this important fact. The learned Counsel further submits that a very important question arises in the instant case that whether the passenger i.e., the appellant Sulleman, was having any knowledge with regard to the contraband items present in the Mazda Truck, if any, as he was a passenger simplicitor. He states that the answer of this question is an Emphatic No. He states that mere presence of the appellant by no state of imagination connects him with the commission of the said crime. He further states that there is no detail available as to whether the samples were separated from the main item, whether they were sealed on the spot and whether they were placed in a separate bag. He states that the case of the prosecution is totally silent on these aspects. He reiterated that there was a delay of 04 days in sending the items for chemical examination and no plausible explanation is available as to where these contraband items were kept after receiving them from the ‘Malkhana’ on 08.7.2010 and sending the same on 12.7.2010. He states that the items were not de-sealed before the trial Court. He further states that these items are liable to be sent within 72 hours for the chemical examination, which admittedly was not done. He in the end prayed that the appellant/accused may be acquitted, however he also took an alternative plea that in case the appellant/accused is found guilty, his sentence may be reduced to the one already undergone. In support of his above contentions the learned Counsel has relied upon the following decisions:-
01. Wasal Khan v. The State, PLD 1994 (FSC) 37,
02. Muhammad Akram Khan v. The State, 1996 P.Cr.L.J 843,
03. Ghaus Bux v. The State, PLD 2004 (Karachi) 201,
04. Muhammad Hashim v. The State, PLD 2004 (S.C) 856,
05. Muhammad Younis Lakhani v. The State, PLD 2006 Kar. 198,
06. Niaz-ud-din v. The State, 2007 SCMR 206,
07. Mitha Khan v. The State, PLJ 2007 Cr.C. Lahore 361
08. Nazar Hussain v. The State, 2007 YLR 1601
09. Muhammad Mushtaque v. The State, 2008 SCMR 742,
10. Eran Gul v. The State, PLJ 2008 Cr.C. (Lahore) 877,
11. Ghulam Murtaza v. The State, PLD 2009 (Lahore) 362,
12. Shahzada v. The State, 2010 SCMR 841,
13. Muhammad Noor v. The State, 2010 SCMR 927,
14. Muhammad Janas v. The State, 2010 SCMR 1016,
15. Muhammad Aslam v. The State, 2011 SCMR 820,
16. Meharban v. The State, 2011 P.Cr.L.J 08,
17. Amjad Ali v. The State, 2012 SCMR 577,
18. Ameer Zeb v. The State, PLD 2012 SC 380,
8. Learned A.P.G., on the other hand, supported the impugned judgment passed by the learned trial Court and stated that all the three accused/appellants were apprehended red-handed from the spot and from their possession huge quantity of contraband material was recovered. He stated that perusal of the documents would reveal that the appellants/accused have admitted that they were bringing the said items from Balochistan for selling the same in the Province of Sindh. He states that selling of the contraband items is a crime against the society and the appellants deserve no leniency in this behalf. He further stated that the plea taken with regard to the Goods Company was never raised before the trial Court, hence the said plea at this juncture is not available to the appellants. He further states that had the appellants been innocent, they would have said the same in a categorical terms while their 342, Cr.P.C statements were recorded, but a perusal of those statements would reveal that they have simply stated that the allegations made against them are false without disclosing the correct story, if there were any. He states that in the said statements only a general denial has been given without there being any detailed deliberation. He stated that there was no enmity between the police and the accused and the police witnesses are as good witnesses as other witnesses. He further stated that when the contraband items were produced before the trial Court, the seals were intact, which had remained unchallenged. He states that all the police officials were part of the raiding party. He states that the depositions of the P.Ws would reveal that there was no material contradiction in the depositions as minor contradictions are bound to take place, which are to be ignored. He states that though he admits that there was difference in the weight as disclosed by the P.Ws but that would not make any substantial difference, as in view of the crime committed by the appellants/accused they were liable to be given death sentence, but since they had already been given a lesser punishment, hence substantial justice has already been given to them by the trial Court and hence they deserve no further leniency. He stated that chance was given to the appellants but they neither examined themselves on oath nor led any evidence in their defence to disprove the allegations made against them. He further stated that the delay in sending the sample is also immaterial as there are plethora of judgments given by the superior Courts that if delay has occurred with no malafide intention, that delay is liable to be ignored. In support of his above contentions, he has relied upon the following decisions.
(i) Tariq Mehmood v. The State, 2008 PSC 867
(ii) Gul Alam v. The State through Advocate General, N.W.F.P., 2009 PSC 600,
9. We have heard all the learned Counsel at considerable length, have perused the record and the decisions relied upon by them.
10. We will examine the case of each accused independently.
11. Examination of the case of appellants/accused Yousuf and Mahboob reveals that they have shifted the entire burden of the crime on the shoulders of Sulleman by specifically mentioning that they have nothing to do with the recovered items, as it was Sulleman and his absconding accomplices Abdul Qayoom and Aslam who hired the truck for loading some items, which subsequently turned out to be contraband items (charas). It has specifically been mentioned by appellants Yousuf and Mahboob that they had no knowledge about the items booked by Sulleman. They have further stated that it was Sulleman, who was to be held responsible for the whole episode and not them. These two persons have categorically mentioned that they were the driver and cleaner simplicitor and there is no role of them in respect of availability of contraband items loaded in the truck.
12. However, on the other hand, if the case of Sulleman is examined, it would be seen that he has shifted the entire burden on the shoulders of Muhammad Yousif and Mehboob Ali, by categorically saying that he was only a passenger. However, it is strange to note that how come a person can be a passenger in a Mazda Truck, of which no plausible reply is available with the learned Counsel for the appellant Sulleman. It has also been stated that these items were booked from Quetta, however, all the three appellants/accused have failed to produce a single evidence in support of their contention regarding booking of the said items e.g., any Builty document, any receipt of any Goods Transport Company etc.
13. The contention of learned Counsel appearing for Appellant Sulleman Pathan that he was just traveling in the said Mazda Truck as a passenger and he had no concern with the driver and conductor of the said truck, therefore, he had no knowledge of availability of the contraband material in the truck, appears to be misconceived. We have minutely scanned the entire record. There is nothing on record to show that appellant Sulleman Pathan was merely a passenger. Even the statement under Section 342, Cr.P.C of appellant Sulleman Pathan is silent on this point. Specific question for explaining his position was put to the appellant “Have you anything else to say?” The appellant replied “I am innocent.” Even no such suggestion seems to have been put by the Counsel representing the appellant Sulleman Pathan to any of the P.Ws during their cross-examiantion. Under such circumstances, this contention of the learned Counsel for appellant Sulleman Pathan appears to be an afterthought. From the record it is also evident that when these three persons/appellants were apprehended, all of them unanimously stated that they purchased the said items from Quetta for selling the same in different parts of Sindh, which also fully connects them with the alleged crime.
14. In the C.N.S Cases there are, apart from others, two important aspects which have to be examined; No.1 : Possession and No.2 : Knowledge. If whole case is seen in juxtaposition, it would reveal that all three persons have not denied both of these aspects of the case i.e., possession and knowledge of the contraband material. There is nothing on record to show that the appellants were unaware or were having no knowledge about the availability of the contraband material in their Truck. They also have not raised any such plea in their 342, Cr.P.C statements. On the contrary, all of them have admitted as mentioned in the F.I.R that these contraband items have been recovered from their possession and have also admitted that they had full knowledge about the items loaded in the truck, which upon examination turned out to be the charas.
15. It is also an admitted fact that none of the appellants/ accused has controverted the report of the Chemical Examiner. It is also an undeniable fact that property was sealed at the spot and was produced in a sealed condition before the trial Court. Moreover, there does not arise any plausible justification for implanting such a huge quantity upon them, when admittedly no case of any police enmity has been pointed out.
16. It is also an undeniable position that it is not the requirement of the law that the whole contraband material should be sent for chemical examination, as for the opinion of the Chemical Examiner only a portion is sent, which in the instant case has duly been done. Therefore, while disagreeing with the contention of the learned Counsel, that there has been a delay in sending the contraband items, we would like to observe that the delay of 04 days occurred in this regard, in view of the facts and circumstances of the case, could not be treated as fatal in absence of objections regarding the same having been tampered with or manipulated. Though, the sample was sent to the chemical examiner after 04 days of the recovery, but from the evidence of the complainant and the I.O., it appears that no question was put to any of them as to where the sample was lying during these four days, therefore, such delay, in our view, is immaterial and does not adversely affect the prosecution case. Both the learned Counsel have not said a single word with regard to tampering or manipulation of the items, but the only plea raised by the learned Counsel was with regard to delay in sending the samples, which in view of the above circumstances of the case was not found to be so glaring to put a dent in the case of the prosecution. Hence, in our view, the recovery of huge quantity of contraband items from the ‘bortas’/sacks from the possession of the accused has been satisfactorily proved.
17. We were also able to lay our hands on a decision given by the Hon’ble Supreme Court of Pakistan in the case of Gul Alam v. The State (NLR 2010 Criminal 59), wherein the Hon’ble Supreme Court of Pakistan has observed as under :-
“The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the petitioner that the property was tampered with during the process of transit or the remaining property was not ‘charas’. It was for the petitioner to have taken such plea before the Trial Court but the petitioner did not do so. However, we have examined the Chemical Analyzer’s report and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the arghument of learned Counsel for the petitioner is not sound. Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar. (PLD 2009 SC 39).
18. It is also seen that the depositions of the P.Ws had mainly remained unanimous on all aspects of the case with regard to place, time, arrest and recovery. The accused could not point out any major contradiction in the statements of the prosecution witnesses so as to create a doubt in the prosecution case. On all material aspects of the case, such as, date, time and place of recovery, preparation of mashirnama, weight of the contraband material, taking sample and sealing the property at the spot etc., the evidence of all the prosecution witnesses, particularly, the complainant Inspector Ahsan Ali Buledi and mashir HC Zahid Islam is consistent.
19. Though the P.Ws have given different weight of the allegedly recovered contraband material than the one disclosed in the F.I.R, but on the basis of such difference in the weight alone it cannot be said that no recovery was effected from the appellants and the appellants cannot claim acquittal in such a heinous offence involving capital punishment on this issue alone. The other contradictions pointed out by the learned Counsel for the appellants in our view are also minor, which ought to be ignored. Such minor contradictions do not vanish the entire prosecution version and they are not of such importance that the evidence of the prosecution witnesses could be brushed aside.
20. The most important aspect in this case with regard to enmity, ill-will or grudge has not been pointed out to indicate false implication of the accused/appellants. Despite lengthy cross-examination, the veracity of the statements of the P.Ws could not be shattered and nothing favourable to the defence could be extracted from their statements. So far the contention of the learned Counsel for the appellants that the contraband material was foisted upon the appellants is concerned, there is nothing on record to show that there existed any enmity between the appellants and any of the police officials to substantiate such plea. Even otherwise, such a huge quantity, which is in maunds and not even in kilograms, cannot be said to have been foisted unless some evidence relating to previous enmity between the police and the accused is brought on record. In the instant case, such factor is totally missing. Even the appellants in their 342, Cr.P.C statements have not even alleged that the contraband material has been foisted upon them due to enmity.
21. Before proceeding further, it would be advantageous if an extract from the decision given in the case of Tariq Mehmood v. The State, (PLD 2009 S.C 39) is reproduced here-in-below :-
“The Charas in huge quantity has been recovered from the bag carried by the appellant. The recovery was proved by the members of raiding party, who had no personal reason to involve the appellant in a false case. The explanation offered by the appellant for false implication is not plausible. The learned counsel for the appellant has not been able to point out any material discrepancy and contradiction in the evidence suggesting a slight doubt in the prosecution case arising in favour of appellant and consequently, we would not take any exception to the judgment of High Court.”
22. The case laws furnished by the Counsel have been considered and are found to be distinguishable as they revolve around their own facts. The learned Counsel for the appellants have referred to plethora of decisions rendered by the superior Courts. With utmost regards and respects, we may observe in this regard that it is well-settled principle of administration of criminal justice that each case has to be decided independently on its own facts and circumstances. The learned Counsel has further relied upon the case of Mehrban (supra) decided by one of us, namely, Irfan Saadat Khan, J. Perusal of that judgment clearly reveals that in that case, apart from a number of major contradictions in the evidence of prosecution witnesses, the contraband items were sent for chemical examination after a period of almost two months, three samples were prepared and only one sample was sent for chemical examination, thus since the facts of that case are different from the instant case, therefore, that case could not be considered to be akin to this case.
23. Lastly, we would like to observe that there can be no cavil to the proposition that due to the indivisibility of credibility the evidence of the police officials requires close scrutiny and the Courts have to sift the grain from the chaff, but at the same time the evidence of police officials cannot be disbelieved as a whole merely because of their being police officials, until and unless some malafide or enmity is brought on record to indicate false implication of the accused in the case, which factor is also completely missing in this case.
24. The cumulative effect of the above discussion is that we are of the firm view that the learned trial Court has not committed any illegality while convicting the appellants, therefore, in our view, the judgment passed by the learned trial Court does not call for interference. Resultantly, the appeals are dismissed and the conviction and sentence awarded to the appellants by the learned trial Court is maintained.
25. Since the appeal was fully argued on merits, therefore, the alternate prayer made by the learned Counsel for the appellant Sulleman Pathan that the sentence awarded to him may be converted into the one already undergone by the appellant, also merits no consideration, which is also turned down.
JUDGE
JUDGE
Tahir H. Qazi/*