2018 PLP 240 (YLRN)

AMJAD ALI SAHITO, J.

Appellants Rehmatullah son of Muhammad Rind and Rafiullah son of Ghulamullah Rind were tried by learned Sessions/Special Judge C.N.S, Jacobabad, in Special Case No.36/2012, arising out of Crime No.07/2012 for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, registered at Excise P.S. Jacobabad. By judgment dated 07.12.2013, both the appellants were convicted and sentenced for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, to suffer rigorous imprisonment for life and to pay fine of Rs.500,000/-(Five hundred thousands) each and in case of default in payment of fine, it was further ordered that the appellants shall suffer S.I. for six (06) months more. However, benefit of section 382-B, Cr.P.C. was also extended to them.

2. The facts leading to disposal of instant appeal are that on 12.12.2012, at about 04.20 a.m, complainant/Excise Inspector Gul Muhammad Bhutto lodged report with Excise P.S Jacobabad, in which he mentioned that on 11.12.2012, he along with Excise Inspector Imdad Hussain Palal Excise P.S Circle Jacobabad and other subordinate staff E.J. Muhammad Hashim, Mir Jeand, Rafiq Ahmed, Imtiaz Ahmed, Barkat Ali and Muhammad Aslam proceeded under Entry No.03, towards Excise Check Post situated near Mehar Shah Bukhari Shikarpur Road for the purpose of checking suspected vehicles. During course of checking, one Mazda Truck bearing registration No.TKM-310/Quetta was stopped, in which two persons were found sitting, who on enquiry revealed their identity to be Rehmatullah son of Muhammad by case Rind (driver) and Rafiullah son of Ghulamullah by case Rind(cleaner). During search of Mazda Truck, 388 plastic packets were secured from its secrete cavities, which on opening were found containing 02 strips in each packet, making total of 766 strips of charas, which was entirely weighed and found to be 09 mounds and 28 K.Gs of charas, out of which 10 grams from each strip making total of 7.760 K.Gs were separated as samples for chemical analysis while the remaining charas was also sealed separately. On bodily search of accused Rehmatullah, a cash of Rs.700/= was recovered from right side pocket of his shirt while from accused Raifullah, a cash of Rs.400/- was secured from right side pocket of his shirt. On search of Mazda Truck, one registration book in the name of Abdul Manan son of Taj Muhammad, resident of Saryab Quetta was secured. Thereafter, said Mazda Truck along with key and registration book were taken into possession and such mashirnama of arrest and recovery was prepared by citing E.C Meer Jeand and E.C Barkat Ali. Later-on, the accused along with recovery were then brought at Excise P.S Jacobabad, where the instant FIR for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, was registered against the accused on behalf of the State.

3. After registration of FIR, the investigation was carried out by complainant/Excise Inspector Gul Muhammad himself, who dispatched the sealed parcels of secured charas through E.C Imtiaz Ahmed on 12.12.2012, in the office of Chemical Examiner, Government of Sindh, Chemico Laboratory Sukkur at Rohri, so also he recorded statements of the PWs under section 161, Cr.P.C. and after completing all the formalities, submitted the final report under section 173, Cr.P.C. against appellants before the competent Court of law.

4. After completing all formalities, on 23.01.2013 a formal charge against the appellants was framed at Exh.2, for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997, by the learned trial Court to which the appellants pleaded not guilty and claimed to be tried.

5. At the trial, in order to establish the accusation against the appellants, the prosecution examined the following witnesses:-- (i) PW-01 Complainant/Investigation Officer Gul Muhammad Bhutto was examined at Exh.05, who produced memo of arrest and recovery at Exh.05/A, roznamcha departure and arrival entry at Exh.05/B, FIR at Exh.05-C, chemical examiner's report at Exh.05-D and mashirnama of place of incident at Exh.05-E respectively. (ii) PW-02 Mashir/E.C Meer Jeand was examined at Exh.06. Both these witnesses were cross-examined by the counsel for the appellants. Thereafter, the learned incharge DPP/SPP for the State closed the prosecution side vide statement at Exh.07.

6. Statements of the appellants were recorded under section 342, Cr.P.C. at Exh.08 and 09 respectively, in which they denied the prosecution allegations and further stated that they are innocent and lastly prayed for justice. However, the appellants did not examine themselves on oath nor led any evidence in their defense.

7. The learned trial Court after hearing the parties counsel and on the assessment of the evidence convicted and sentenced the appellants as stated above. Hence the instant appeal has been preferred against the impugned judgment.

8. Mr.Athar Abbas Solangi, learned Counsel for the appellants has contended that the appellants being driver and cleaner are innocent and having no knowledge about the charas available in their vehicle; that the complainant and PWs being excise officials are interested and set-up witnesses; that the evidence of such interested witnesses requires independent corroboration, which is also lacking in the present case; that all the witnesses are police officials and no independent person has been cited as mashir of arrest and recovery in violation of Section 103, Cr.P.C.; that the complainant himself has conducted investigation of this case and there are so many contradictions in the evidence of prosecution witnesses, he lastly contended that the prosecution has failed to prove its case against the appellants; thus according to him under the above mentioned facts and circumstances, the appellants are entitled for their acquittal.

9. On the other hand, Mr.Khadim Hussain Khooharo, Additional Prosecutor General for the State while supporting the impugned judgment has argued that the prosecution has proved its case against the appellants who were found transporting huge quantity of narcotics substance which was secured from the truck driven by them; that the police officials had no enmity to foist such a huge quantity of charas upon the appellants; he lastly prayed for dismissal of instant appeal.

10. We have heard learned counsel for the appellants, learned Additional Prosecutor General for the State and have gone through the evidence with their able assistance.

11. The perusal of record reveals that 09 mounds and 28 K.Gs of Charas was recovered from the cavities of Mazda Truck, which was driven by the appellant Rehmatullah and appellant Rafiullah being its cleaner was also available in the said Mazda Truck. The address furnished by both the appellants in their statements recorded under section 342, Cr.P.C. is Muhalla Khuda-e-Rahim Dalbandian, Tehsil Chaki, Province Balochistan, and set out from their province and were arrested at Excise Check Post adjacent to Mehar Shah Bukhari, Shikarpur Road Jacobabad, before their reaching to destination, hence both the appellants are responsible for transportation of huge quantity of narcotics having knowledge of the narcotics substance in their vehicle, and it is nowhere mentioned or suggested by the both the appellants that the said Mazda Truck was either hired by someone else or loaded by the labourers and they had no knowledge about the availability of narcotics substance in it. In such situation, it cannot be believed that such huge quantity of Charas kept in the secrete cavities of the vehicle, which undeniably remained in possession and control of both the appellants all the way long from Balochistan to the place of recovery had no knowledge of narcotics substance, rather they being its driver and cleaner were fully responsible for transporting of such huge narcotics substance in their vehicle. The reliance in this context is placed upon case of Kashif Ameer v. The State (PLD 2010 SC 1052), wherein the Hon'ble Supreme Court of Pakistan has held that:-- 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. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. The State (1988 SCMR 1899). This Court has observed that knowledge and awareness would be attributed to the incharge of the vehicle. Another aspect of the case is that once the prosecution has prima facie established its case then under section 29 of CNSA burden shifted upon the accused to prove contrary to the plea of the prosecution. Reliance in this behalf may be made to the case of Ismaeel v. The State (2010 SCMR 27). Wherein, this Court while relying upon the cases of Muhammad Arshad v. The State (2007 SCMR 1378) and Mst. Taj Bibi v. The State (2007 SCMR 1591) has held that chemical examiner's report regarding Charas and Opium were sufficient to prove that the substance recovered from the accused was Charas which can be used to cause intoxication; the prosecution had discharged its initial onus while proving that substance was recovered from him whereas the petitioner had failed to discharge its burden in terms, of Section 29 (d) of CNSA.

12. As regard the arguments of learned counsel for the appellants regarding violation of Section 103, Cr.P.C. is concerned, it would be appropriate to refer section 25 of the Control of Narcotic Substances Act 1997, which reads as under:-- "

25. Mode of making searches and arrest.

The provisions of the Code of Criminal Procedure, 1898, except those of section 103, Cr.P.C. shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections."

13. It means that applicability of section 103, Cr.P.C. in the narcotics cases has been excluded and none inclusion of any private witness is not a serious defect to vitiate the conviction. So far the evidence of excise officials is concerned, they are competent and their evidence cannot be discarded, only for the reason that they are excise officials. They have furnished straight forward and confidence inspiring evidence, there is nothing on record to show that they have deposed against the appellants maliciously or out of any animus and it cannot be believed that the excise officials would plant such a huge quantity of narcotics viz. 09 mounds and 28 K.Gs against the appellants at their own sources. It is settled principle of law that the prosecution witnesses belong to police officials by itself cannot be considered as a valid reason to discard their statement. The reference in this context is made to the case of Zaffar v. The State (2008 SCMR-1254), the Hon'ble Supreme Court of Pakistan has held that:-- "Police employees are the competent witnesses like any other witnesses and their testimonies cannot be discarded merely on the ground that they are police officials"

14. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been brought on record, thus in absence thereof, the competence of prosecution witnesses being officials was rightly believed. Moreover, a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected, then mere procedural omission and even allegation of improper conduct of investigation would not help the accused. The reference in this context is made to the case of the State/ANF v. Muhammad Arshad (2017 SCMR-283), wherein the Hon'ble Supreme Court of Pakistan has held that;- "We may mention here that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case".

15. Even otherwise, mere status of one as official would not alone prejudice the competence of such witnesses until and unless he is proved to be interested, who has motive, to falsely implicate an accused or has previous enmity with the person involved. The reliance in this context is made to the case of Farooq v. The State (2008 SCMR 970).

16. It is now settled proposition of law that by flex of time in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands otherwise proved, the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Qadir v. The State reported in PLD 2006 SC 61 has held that:-- "S. 9(c)

Appreciation of evidence.

No acquittal on technicalities

Court in such like cases are supposed dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities."

17. It is pertinent to mention here that chemical examiner's report regarding Charas is sufficient to prove that the substance recovered from the appellants can be used to cause intoxication and the prosecution has discharged its initial onus while proving that substance was recovered from the secret cavities of Mazda Truck in possession and control of appellant Rehmatullah and Rafiullah being its driver and cleaner respectively, for which both the appellants have failed to discharge their burden in terms of Section 29 of Control of Narcotic Substances Act 1997, which is reproduced herein below for ready reference:-- "

29. Presumption from possession of illicit articles.

In trials under this Act, it may be presumed, unless and until the contrary is proved, that he accused has committed an offence under this Act in respect of- (a) Any narcotic drug, psychotropic substance or controlled substance; (b) Any cannabis, coca or opium poppy plant growing on any land which he has cultivated. (c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or 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. (d) any material which have undergone any process towards the production or manufacture of narcotic drug"

18. From the plain reading of section 29 of Control of Narcotic Substances Act, 1997, it is evident that where the prosecution prima facie proves recovery from the accused, then the Court is required to presume that the accused is guilty unless he proves that he was not in possession of such drugs. Meaning thereby the burden then would be upon the accused to establish his innocence and absolve himself from the allegations regarding recovery of narcotics substance, while the prosecution has only to show by evidence that the accused was in custody or directly concerned with recovered narcotics substance. In the instant case, the Charas recovered from the secrete cavities of Mazda Truck, stood establish, hence it was the turn of the appellants to have proved contrary. Without such proof, the accused will be held guilty by virtue of Section 29 of Control of Narcotic Substances Act, 1997.

19. So far the plea raised by learned defense counsel that the complainant himself was investigating officer and all the witnesses are excise officials, is of no help to the appellants. The reliance in this context is placed upon the case of The State v. Zaffar (2008 SCMR 1254), wherein the Hon'ble Supreme Court of Pakistan has held that:-- "Police officials are not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an investigating officer, so long as it does not in any way prejudice the accused person".

20. Though, the investigation officer and other prosecution witnesses are excise officials but they have no enmity or rancor against the appellants to plant such huge quantity of narcotics substance against them. The defense has not produced any evidence to establish animosity qua the prosecution witnesses. In matters of huge quantity of narcotics, the absence of enmity or any valid reason for false involvement would also be circumstances tilting the case against the accused. The reliance is made on the case of Salah-ud-Din v. The State, reported in 2010 SCMR-1962, wherein the Hon'ble Supreme Court of Pakistan has held that:-- " .No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motives which was never alleged. In view of overwhelming prosecution evidence the defense version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reasons "

21. Here, all the witnesses have deposed in line to support the prosecution case and despite cross examined by learned defense counsel at length the defense has failed to make any dent in the prosecution case or to extract any material contradiction fatal to prosecution case.

22. On our evaluation of the evidence of complainant/Excise Inspector Gul Muhammad and mashir/EC Mir Jeand, we find it confidence inspiring and trustworthy; the appellants while transporting the huge quantity of Charas viz. 09 mounds of 28 K.Gs in Mazda Truck bearing registration No.TKM-310/Quetta, were arrested at Excise Check Post near Mehar Shah Bukhari Shikarpur road Jacobabad with the recovery of huge quantity of Charas and version of PW-01 complainant/Excise Inspector Gul has been fully supported by the prosecution witnesses i.e. mashir of arrest and recovery which has been corroborated by the material documents including memo of arrest and recovery, FIR and roznamcha departure and arrival entry showing their movement and positive chemical examiner's report and no enmity, ill-will or grudge has been alleged or proved against the prosecution witnesses to falsely implicate the appellants.

23. Considering the above facts and circumstances of the case, we are of the considered view that the prosecution has succeeded to bring the guilt of the appellants at home and the learned counsel for the appellants has failed to point out any material illegality or infirmity committed by the learned trial Court while passing the impugned judgment, which is based on appreciation of evidence, therefore, the same does not call for any interference. Accordingly, the instant appeal is dismissed being devoid of merits.

24. These are detailed reasons of the short order dated 27.03.2018 announced by us, whereby the appeal was dismissed. HBT/R-15/Sindh Appeal dismissed.