Cr. Appeal No.159 of 2013

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD.

Present:

Mr. Justice Abdul Rasool Memon,

Mr. Justice Zafar Ahmed Rajput,

Cr. Jail Appeal No.D- 33 of 2013.

Cr. Appeal No.D-38 of 2013.

Appellant: Ali Gul alias Mujahid

Through Mrs. Razia Ali Zaman Khan Advocate.

Versus

Respondent: The State

Through Syed Meeral Shah, DPG.

Cr. Jail Appeal No.D-34 of 2014

Appellant: Gul Muhammad alias Guloo,

In person.

Versus

Respondent: The State

Through Syed Meeral Shah, DPG.

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Date of hearing: 13.11.2014

Date of judgment: .12.2014

J U D G M E N T

ABDUL RASOOL MEMON,J:- This common judgment will govern the disposal of supra titled three criminal appeals arising out of one and same case crime No: 274/2012 P.S Badin u/s 9(c) of CNS Act, 1997.

2. Prosecution case precisely as stated in the FIR is that on 27.09.2012 a police party headed by complainant SIP Abdul Azeem Boohar of P.S Badin vide entry No.8 at 1100 hours left P.S for patrolling by official vehicle. During course of patrolling he received spy information that drug peddlers, namely, Achar Mallah, Guloo Mallah and Murtaza Khaskheli had gone to Talhar and would bring charas for selling in Badin Town. Police party held nakabandi and started checking of vehicles at Mianwali bus stop when it was 1200 hours they saw a chingchi rickshaw coming from Talhar town, on seeing police party it was became slow, on front seat Achar and Gul Muhammad alias Guloo were sitting while on the back seat Murtaza was found sitting, who on seeing police alighted from rickshaw and ran away towards eastern side. The rickshaw driver also tried to escape but was apprehended by police, who disclosed his name as Ali Gul alias Mujahid s/o Ali Dino Chandio resident of village Ali Murad Chandio Taluka Tando Ghulam Hyder. On search, six notes of Rs.100/- and one of Rs.50/- (total Rs.650/-) were recovered from his front pocket and one white plastic kata (bag) lying under the seat with smell of charas, was also recovered from rickshaw. On opening four packets of charas wrapped in plastic, each packet containing 100 rods and (13) thirteen packets containing a big piece of charas in each packet, were found lying therein, each packet weighing one K.G (total 17 K.Gs) charas was recovered from the said bag, which was sealed on the spot. On enquiry, accused Ali Gul disclosed the names of co-accused who had escaped away as Ghulam Murtaza, Achar Mallah and Guloo Mallah. Chingchi Rickshaw Hi-speed, engine No. RMI 340763, Chassis No.SR 70229528 was also recovered by police and such mashirnama was prepared in presence of mashirs ASI Muhammad Saleem Khoso and PC Umed Ali, then brought the accused and property at Police Station which was followed by the registration of FIR u/s 9 (c) of C.N.S Act, 1997 (Ex: 9-D).

3. Complainant SIP Abdul Azeem Boohar himself carried out the investigation of the case, he sent the whole recovered property / charas to Chemical Examiner and report thereof was received in positive (Ex:9-E), recorded statements U/s 161 Cr.P.C of the witnesses. Accused Achar, Gul Muhammad and Murtaza could not be arrested and on completing the challan of case was submitted. However, accused Ghulam Murtaza surrendered himself before the trial court, and accused Achar and Gul Muhammad were ultimately declared as proclaimed offenders.

4. At the trial, the prosecution examined complainant SIP Abdul Azeem (Ex;9), who produced daily diary entry, mashirnama of arrest and recovery, FIR and Chemical Examiner’s report (Ex:9-A to D respectively), P.W-2 ASI Muhammad Saleem mashir of arrest and recovery (Ex:10). The statement of accused Ali Gul alias Mujahid and Ghulam Murtaza were recorded at (Ex: 12 and 13 respectively), they neither opted to be examined U/s 340(2) Cr.P.C in disproof of charge, nor produced evidence in their defence.

5. On conclusion of the trial, the prosecution was found to prove its case against appellant Ali Gul alias Mujahid U/s 6 of the Act, he was convicted and sentenced u/s 9 of the Act vide judgment dated 16.04.2013 for 14 years and to pay fine of Rs.200,000/- and in case of non-payment of fine to suffer SI for two years, however, he was given benefit of Section 382-B Cr.P.C while accused Ghulam Murtaza was acquitted by extending benefit of doubt u/s 265-H(i) Cr.P.C.

6. Appellant Ali Gul alias Mujahid challenged his conviction by filing appeal through Jail Superintendent, which was admitted as Criminal Jail Appeal No.D-33/2013 and, later-on his advocate also filed Criminal Appeal No.D-38/2013, during pendency thereof one of the absconders accused, namely, Gul Muhammad alias Guloo was arrested, and tired. In the subsequent round of the trial same witnesses SIP Abdul Azeem and ASI Muhammad Saleem were examined (Ex:4 and 5 respectively) and the statement of accused was recorded u/s 342 Cr.P.C (Ex;7) wherein he denied the entire case of prosecution in toto professing innocence to be the guilty of the offence. He, however, neither examined himself on oath nor produced evidence in defence. On conclusion of trial, appellant Gul Muhammad alias Guloo was also convicted u/s 9 of the Act and was awarded R.I for 14 years and to pay fine of Rs.200,000/- and in case of non-payment of fine to suffer S.I for two years more. He was extended benefit of section 382-B PPC vide judgment dated 31.01.2014. He also preferred an appeal through Jail which was admitted as Criminal Jail Appeal No.D-34/2013.

7. Mrs. Razia Ali Zaman Khan learned counsel for appellant Ali Gul alias Mujahid has contended that the appellant being driver of the Chingchi Rickshaw was not in conscious knowledge and possession of the alleged charas thus, was not liable to conviction; that no private person was cited / examined as mashir in the case, as such requirement of provision of Section 103 Cr.P.C was not complied with; that there is delay in sending the property to chemical examiner, which created doubt in the prosecution case.

8. Appellant Gul Muhammad alias Guloo argued his case in person and submitted that nothing had been recovered from him but was falsely implicated in this case by the police under the influence of political persons.

9. On the other hand Syed Meeral Shah learned Deputy Prosecutor General Sindh has argued that prosecution proved its case against the appellant Ali Gul alias Mujahid beyond any reasonable shadow of doubt, as the evidence of both prosecution witnesses namely SIP Abdul Azeem and ASI Muhammad Salim is consistent and unanimous on all material points. He has further contended that admittedly appellant Ali Gul alias Mujahid was driver of the Chingchi Rickshaw from which alleged charas was recovered and no defence plea as to criminal knowledge was taken during the trial; therefore, the prosecution proved its case against appellant Ali Gul alias Mujahid. He, however, frankly stated for appellant Gul Muhammad alias Guloo that his case is identical to that of co-accused Ghulam Murtaza, who has been acquitted by the trial court.

10. We have heard learned counsel for the parties and have gone through the impugned judgments so also the evidence brought on record. The prosecution in order to prove the factum of apprehension of appellant Ali Gul alias Mujahid and the recovery of 17 K.Gs of contraband charas from his rickshaw has produced two witnesses, complainant SIP Abdul Azeem (Ex:9) and mashir ASI Muhammad Saleem (Ex:10). Both these witnesses in an unequivocal manner have deposed that on 27.09.2012 at 1200 hours at Mianwali bus stop Talhar / Badin Road appellant / accused Ali Gul alias Mujahid was apprehended by them when he was coming in his rickshaw along with three other persons from Talhar side and on checking a plastic kata (bag) containing 17 packets of charas (total 17 K.G) was recovered. The chemical examiner’s report (Ex:9-E) dated 09.10.2012 reveals that the charas had properly been dispatched and received in his office on 01.10.2012 and on examination, the said property was found as charas. This appellant disclosed the name of his chingchi passengers as Achar Mallah, Guloo Mallah and Ghulam Murtaza Khaskheli, who had escaped away from chingchi. The learned counsel for appellant Ali Gul alias Mujahid during arguments could not pin point a single material contradiction in the evidence of prosecution witnesses, who have remained unanimous on all material aspects of the case. Their evidence is consistent, coherent and they have successfully faced the test of cross-examination, nothing came on record to discredit their evidence so far the case of this appellant Ali Gul is concerned.

11. Taking the first contention of learned counsel for appellant Ali Gul alias Mujahid, it may be mentioned that nowhere in cross examination of the witnesses this defence plea as to knowledge of appellant was suggested nor this plea was taken up by appellant himself in his statement u/s 342 Cr.P.C. It has not been explained by him that as to who kept the alleged bag of charas in his rickshaw or as to why he did not raise objection thereon when smell was said to be coming openly from said bag. Had he not in knowledge of it he would not have tried to escape on seeing police, it indicates that he had knowledge about the alleged charas. By virtue of Section 29 of CNS Act, the prosecution 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 the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. As stated above, in the instant case, the prosecution through evidence of above said witness has successfully established that appellant Ali Gul alias Mujahid was apprehended on spot and from his rickshaw the plastic kata (bag) containing 17 K.Gs of charas were recovered and after that the burden has been shifted upon the appellant, but he has failed to prove that he had no knowledge or consciously possessed the article above.

12. Coming to the second contention of the learned counsel for appellant Ali Gul alias Mujahid regarding non-association of private witness, it may be stated that the police witnesses are as good witnesses as other respectable public witnesses and their statements cannot be discarded for the reason that they are the police employees until and unless any animosity is shown or proved against them. No enmity is alleged against the P.Ws and even otherwise provision of Section 103 Cr.P.C is not applicable in the cases of CNS within the meaning of Section 25 of the Act. Reverting to the objection of sending the charas with delay, the chemical report has been produced at Ex.9-E which is in positive. The charas was received by chemical examiner on 01.10.2012 but the defence counsel though made lengthy cross-examination to the complainant SIP Abdul Azeem and mashir ASI Muhammad Saleem, no suggestion was given if the property was tempered with during the process of transit or it was not charas. The chemical examiner’s report reveals that the sealed bag was received by him which contained signatures of marginal witnesses, therefore, the alleged delay is not fatal to the prosecution case, as such, above contention of the learned appellant’s counsel is not sustainable, in this regard reliance is placed on the case of Tariq Mehmood Versus the State through Attorney-General (PLD 2009 SC 39).

13. Appellant Ali Gul alias Mujahid has failed to rebut the prosecution version produced in shape of ocular testimony of P.Ws SIP Abdul Azeem and ASI Muhammad Saleem supported by Chemical Examiner’s report and identity of accused and property in the court.

14. In view of the above, we find that the prosecution has succeeded to prove its case for recovery of 17 K.Gs charas as mentioned supra against appellant Ali Gul alias Mujahid and the reasons given by the trial court show fair evaluation of evidence. We find no illegality or infirmity in the impugned judgment of appellant Ali Gul alias Mujahid warranting interference of this Court, therefore, Criminal Jail Appeal No. D-33/2013 and Criminal Appeal No.D-38/2013 filed by and on behalf of appellant Ali Gul alias Mujahid are dismissed.

15. Reverting to the case of appellant Gul Muhammad alias Guloo, his case is identical and on same footing as to that of co-accused Ghulam Murtaza who was tried along with appellant Ali Gul alias Mujahid and was acquitted by the trial court by disbelieving the evidence of prosecution to the extent of his involvement in the case and observed as under:

“The prosecution has failed to prove the charge against him beyond any reasonable shadow of doubt hence he is given benefit of doubt and acquitted from the charge of case U/s 265-H(i) Cr.P.C.”

But surprisingly, while assessing the evidence of same prosecution witnesses in the case of appellant Gul Muhammad alias Guloo, who was tried separately, was believed by the trial court and held that accused Gul Muhammad alias Guloo was prominent drug peddler and had also been involved in other narcotic cases, and due to that reason he was convicted. From where the trial court drew such conclusion, record is silent. If his involvement is believed to be in other cases, even then mere involvement in other cases is not sufficient to deprive him from his liberty in view of case of Muhammad Rafique Versus The State (1997 SCMR 412). The prosecution, in the circumstances discussed above, has not produced any material to prove appellant Gul Muhammad Guloo as hardened or criminal to hold him dangerous, therefore, learned Prosecutor is justified in recording no objection for granting same relief to appellant Gul Muhammad alias Guloo as was given to accused Ghulam Murtaza, consequently the appeal of appellant Gul Muhammad alias Guloo is allowed and impugned judgment dated 31.01.2014 is set aside, he is acquitted from the charge after extending benefit of doubt to him, he be released forthwith if is not required in any other case.

JUDGE JUDGE