HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 181 of 2014

Mr. Justice Naimatullah Phulpoto

Mr. Justice Nazar Akbar

JUDGMENT

Date of Hearing : 03.04.2015 .

Date of Judgment : 09.04.2015 .

Appellant : Niaz Muhammad through Mr. Naveed Ali Advocate.

Respondent : The State through Mr. Abrar Ali Khichi APG .

NAIMATULLAH PHULPOTO, J.- This appeal is directed against the judgment dated 29.05.2014 passed by learned Special Court-I (Control of Narcotic Substance) Karachi, convicting and sentencing the appellant Niaz Muhammad under Section 9(c) of the Control of Narcotic Substance Act, 1997.

2. Facts in a nutshell leading to this appeal appear to be that on 24.09.2012 at 1800 hours, Excise Inspector Zamrud Khan of District South Karachi, lodged his report on behalf of state alleging therein that on 24.09.2012, he had left Excise Police Station at 1500 hours along with AETO Dawood Kolachi and other excise staff on spy information, in the Government vehicle vide Roznamcha entry No. 8. Excise party reached near Edhi Centre, main road Tower, South Karachi, where one Taxi appeared at 1600 hours having Registration No. JL-1221, it was being driven by present appellant. Taxi was coming from I.I. Chundrigar Road. It was stopped, on enquiry, appellant, who was driving Taxi, disclosed his name as Niaz Muhammad son of Taza Gul. Excise officials, after observing legal formalities and disclosing their identity conducted personal search of the appellant in presence of the mashirs and from the right side pocket of the shirt one CNIC, driving licence of appellant were recovered from him as well as cash of Rs.700/-. Thereafter, Excise Inspector after taking key from the appellant/accused, searched the car, opened dickey and found that there were plastic thelies in the shape of slabs/patties of Charas. Complainant/I.O arrested the appellant in presence of the mashirs namely AETO Dawood Kalachi and EC Abdul Jabbar and secured Taxi No. JL-1221 along with its keys. On further search of the Taxi from dashboard Registration Book Part-II of the vehicle was also secured. Charas was weighed in presence of the mashirs, each slab/Patti was of 1 K.G, total weight of the Charas was 5 K.Gs. Inspector sealed it in presence of the mashirs. Thereafter, accused and case property were brought to the Excise office, where FIR was registered against the accused on behalf of the state vide Crime No. 9 of 2012 under Section 6/9(c) of C.N.S. Act, 1997. Thereafter, sealed parcel of 5 K.Gs was sent to the Chemical Examiner on 26.09.2012 for chemical analysis.

3. After conclusion of the investigation, Challan was submitted against the accused under the above referred sections.

4. Charge was framed against the appellant under Section 9(c) of the Control of Narcotic Substance Act, 1997. Appellant pleaded not guilty to the charge. Prosecution examined Excise Inspector Zamrud Khan P.W-1, AETO Dawood PW-2, in support of its case. Thereafter, prosecution side was closed.

5. In the statement under Section 342 Cr.P.C, appellant denied the allegations against him and claimed that on the material day, he was arrested in front of Manghopir Mazar and charas was foisted upon him. Appellant further alleged on oath that on 24.09.2012, he was present in front of Mazar of Manghopir, he was arrested from his Taxi No. JL-1221, while he was taking two passengers. No evidence in defence was adduced by appellant.

6. Upon assessment of the oral as well as chemical examiner’s report certifying that the parcel duly sealed forwarded to him contained charas, the learned Special Judge convicted the appellant and sentenced to seven years and six months R.I and to pay fine of Rs.35,000/- or in default to undergo six months and 15 days S.I. Benefit of Section 382-B Cr.P.C was extended to appellant.

7. Sole point for determination in this appeal is whether appellant was rightly convicted and sentenced for the offence charged?

8. We have heard learned counsel for the parties and given our anxious thought to the relevant evidence on record.

9. Learned counsel for the appellant vehemently contended that despite spy information no private person was associated by Excise Inspector as mashir, that the evidence on record did not inspire confidence. It is further argued that narcotics though allegedly recovered on 24.09.2012 was sent to chemical examiner on 26.09.2012. Lastly argued that Charas has been foisted upon the accused. In support of contentions, he relied upon the cases Hakim Ali vs. The State (2001 P.Cr.L.J 1865) & Abdul Janan vs. The State (2010 YLR 2283).

10. Adverting to the first contention of learned counsel for the appellant that prosecution evidence did not inspire confidence in asmuch as no private person was associated as mashir of recovery. It may be observed that provision of section 103 Cr.P.C relating to the search of a place/vehicle would hardly be attracted in the instant case, particularly, in the circumstances when no malafide/enmity has been specifically alleged against Excise officers. Even otherwise, it has been observed by Honourable Supreme court time and again that police witnesses are as good as any other witness, unless it is shown that they were hostile to him with ulterior motive. The plea of appellant in his statement that he was arrested at Manghopir from his Taxi and charas has been foisted. Allegation being vague, general and absurd on face of it, does not merit any serious consideration and we think that evidence on record cannot be brushed aside on this ground alone.

11. Learned defence counsel assailed the prosecution evidence by pointing that number of slabs/patties is not mentioned in mashirnama of recovery of charas. We believe that it is immaterial because in chemical examiner report, it is mentioned that parcel contained five plastic thelies, each was containing soft slab, net weight 05 K.Gs charas, for that reason there is no material discrepancy/omission as nothing turns out on the question of recovery of narcotics substance from the taxi of appellant, it was in his exclusive possession.

12. Lastly learned counsel contended that though the recovery of narcotics substance was purportedly made on 24.09.2012 and the investigation officer sent sealed parcel to chemical examiner on 26.09.2012, we hold that positive chemical report is correct for the reasons that no question was put to complainant/I.O when he exhibited this document/report Ex 4-F with regard to tempering with substance recovered from appellant. Since no question suggesting any substitution, tampering or fabrication of the narcotics substance was suggested to Excise Inspector as well as mashir of arrest and recovery with the natural consequence that overwhelming evidence otherwise can be safely relied upon which cannot be discarded for this reason. It is also not the case of defence that property recovered from the taxi of appellant was tampered. Moreover, in terms of the Control of Narcotic Substances (Government Analysts) Rules 2001, samples of the narcotics may be despatched for analysis under the cover of a Test Memorandum at the earliest, but not later than seventy two hours of the seizure, but in this case charas was sent for analysis within 02 days, as such no delay at all was caused. Contention of the learned counsel for the appellant is without legal force.

13. The case does not end here. Appellant in order to rebut the prosecution version examined himself on oath. He has stated that on 24.09.2012, he was present in front of Mazar of Manghopir in his taxi with two passangers and he was intercepted by five persons in a car. He was brought at Clifton and challaned in this case. Appellant has denied the recovery of charas from his taxi. Appellant has failed to examine passengers of taxi in defence, therefore, his evidence on oath does not have the impact of negating the prosecution evidence which was rightly relied upon by Trial Court.

14. Learned APG argued that Charas was recovered from the dickey of the Taxi of the appellant and it was in his exclusive possession. There is no contradiction inherent defect in the evidence of the prosecution and evidence of the Excise officials is as good as that of any private person. In support of the contention, he has relied upon the case of Kashif Amir Vs. The State (PLD 2010 S.C 1052).

15. It appears that Excise Inspector Zamrud Khan and AETO Dawood Kolachi, mashir of recovery have clearly deposed that 5 KG charas was recovered from the Taxi of appellant on 24.09.2012. Excise officials have also produced arrival and departure roznamcha entries for the satisfaction of the court, we, therefore hold that appellant was on driving seat of vehicle, he was responsible for transportation of narcotics, having knowledge of same. It was in his exclusive possession and control. Rightly reliance is placed upon the case of Kashif Amir Vs. The State (PLD 2010 S.C 1052), wherein the Honourable Supreme court has held as under:

“It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the 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.”

16. We, therefore, think that prosecution case against accused, thus stood proved.

17. For the aforesaid facts and reasons, there is no merit in this appeal, which is hereby dismissed.

JUDGE

JUDGE