2023 PLP 931 (MLD)

IRSHAD ALI SHAH, J.

The facts in brief necessary for disposal of instant Criminal Jail Appeal are that on information the appellant was arrested by police party of PS ANF Sukkur; on search from him was secured a shopper containing 02 KG opium and on inquiry he led the said police party to recovery of 90 KG charas, which he was going to supply to co-accused Mansoor Ali, for that the present case was registered. On investigation the appellant and co-accused Mansoor Ali were challaned by the police. At trial, they denied the charge and prosecution to prove it, examined in all 04 witnesses and then closed its side. The appellant and co-accused Mansoor Ali during course of their examination under section 342, Cr.P.C. denied the prosecution's allegation by pleading innocence, they produced certain documents to prove their innocence, but did not examine anyone in their defence or themselves on oath. On conclusion of trial, co-accused Mansoor Ali was acquitted while the appellant was convicted under section 9(c) of CNS Act, 1997 and sentenced to undergo Imprisonment for life and to pay fine of Rs. 200,000/- (Two Lac) and in default whereof to undergo Simple Imprisonment for 03 months with benefit of section 382-B, Cr.P.C, by learned 1st Additional Sessions Judge/Special Judge (CNS)/ (MCTC), Khairpur vide judgment dated 27-07-2019, which is impugned by the appellant before this Court by way of instant Criminal Jail Appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the ANF Police; there is no independent witness to the incident; there ought to have been two separate memos for each recovery; the names of the PWs ASI Abdul Rasheed and Inspector Noor-ud-Din were not appearing in the calendar of the witnesses, yet they have been examined by the prosecution in absence of their 161, Cr.P.C. statements; DD Asmatullah Khan who was with the police party at the time of incident has not been examined by the prosecution; the Narcotic Substance has been dispatched to the Chemical Examiner with delay of about 03 days and on the basis of same evidence, co-accused Mansoor Ali has already been acquitted by learned trial Court. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. Learned Special Prosecutor ANF by supporting the impugned judgment has sought for dismissal of the instant Criminal Jail Appeal by contending that the case of the appellant is distinguishable to that of acquitted accused Mansoor Ali and prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant Inspector Syed Abid Raza Shah that on 19-12-2014, when he with his staff was conducting patrol under the supervision of DD Asmatullah Khan at National Highway Gambat, there they came to know through spy information that the appellant is available at his Otaq in village Piyalo with huge quantity of Narcotic Substance and is waiting for customer for its supply. On such information they went at the place of incident, there they found the appellant standing there with the shopper, he was apprehended at the pointation of spy and from him was secured such the shopper which he was having; it was found containing Opium in shape of pieces, those were weighed to be 02 KG and sealed; on inquiry the appellant led him and his party towards bushes near to his Otaq, there from took out two bags, each one was found containing 45 packets of charas total 90 packets, each one was weighed to be 01 KG, total 90 KG of charas, from each packet of charas was taken out 20 grams of charas for Chemical Examination, those were sealed, such memo was prepared at the spot and the appellant with the recovery so made then was taken to PS ANF Sukkur, there he was booked in the present case formally and on investigation the appellant disclosed that he being jobless was working with Mansoor Ali, who was dealing with Narcotic business. It was further stated by the complainant that he then dispatched the Opium and samples of charas to the Chemical Examiner, which were opined by him to be Opium and charas by issuing such report. Evidence of the complainant takes support from evidence of PW/PC Shoukat Ali. In order to prove the safe custody of Narcotic Substance in Malkhana and its transmission to the Chemical Examiner PWs Inspector Noor-ud-Din and ASI Abdul Rasheed were examined by the prosecution on an Application under section 540, Cr.P.C. The complainant and his witnesses have stood by their version on all material points with regard to the arrest of the appellant and recovery of Narcotic Substance from him, despite lengthy cross examination; they as such, could not be disbelieved only for the reason that they are police officials; they indeed were having no enmity or ill will with the appellant to have involved him in this case falsely by foisting upon him the huge quantity of Narcotic Substance. The recovery of the Narcotic Substance was simultaneous; therefore there was hardly a need for preparation of separate mashirnama for such recovery. If for the sake of arguments, it is believed that it was necessary; even then such omission has caused no prejudice to the appellant. Of course the Narcotic Substance has been sent to the Chemical Examiner with delay of about 03 days to its recovery, but such delay has been explained plausibly by the complainant by stating that for intervening period there were Holidays. The examination of DD Asmatullah Khan being member of the police party was not essential; therefore, his non-examination could not be treated to be fatal to the case of prosecution. No provision of law is referred, which could have prevented the prosecution from examining any of the person, as a witness in support of its case only for the reason that his name is not appearing in calendar of the witnesses and/or his 161, Cr.P.C. statement was not recorded. Their examination indeed has given an end to the doubt with the appellant with regard to safe custody and transmission of Narcotic Substance to the Chemical Examiner. No doubt co-accused Mansoor Ali has been acquitted by learned trial Court, but there could hardly be made denial to the fact that his case was distinguishable to that of the appellant; from him was recovered nothing and he was involved in present case by the prosecution on the statement of the appellant; therefore, his acquittal may not extend any help/benefit to the appellant. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt which even otherwise is affecting the society at large.

6. In case of Zafar v. The State (2008 SCMR 1254), it has been held by the Honourable Apex Court that; "

S. 9(c)

Evidence of police officials

Competence

Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees".

7. In case of Muhammad Noor and others v. The State (2010 SCMR 927), it has been held by the Honourable apex court that; "The above section expressly cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word 'possess' appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6 possession with knowledge. The Legislature could not have intended to mere physical custody without knowledge of an offence, therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the 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. Without such proof the accused will be held guilty by virtue of section 29, Act 1997. Reliance is placed on cases of Inder Sain v. State of Punjab (AIR 1973 SC 2309)."

8. In case of Kashif Amir v. The State (PLD 2010 SC 1052), it has been held by the Honourable Court that; "

S. 9(c)

Transportation of narcotics

Driver of the vehicle to be responsible

Person 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(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 the vehicle, he is incharge of the same and it would he under his control and possession, hence whatever articles lying in it would be under his control and possession".

10. In case of Iftikhar Hussain v. State (2004 SCMR 1185), it has been held by Hon'ble apex Court that; "

17. It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e sifting of grain out of chaff i.e if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758, relevant para therefrom is reproduced hereinbelow; "thus the proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not he applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502).......

10. In view of the facts and reasons discussed above, it is concluded safely that no case for interference with the impugned judgment is made out by this Court, by way of instant Criminal Jail Appeal, it is dismissed accordingly. SA/M-16/Sindh Appeal dismissed.