2023 PLP 1095 (MLD)

KHADIM HUSSAIN TUNIO, J.

Through captioned criminal appeals, appellants have challenged the judgment dated 15.04.2021 (impugned judgment) passed by the leaned Vth Additional Sessions Judge/Model Criminal Trial Court (Extension), Karachi-East in Sessions Case No. 1525/2020 (Re: The State v. Iqbal Ahmed and another), culminated from FIR No. 317/2020 registered at P.S. Awami Colony, under sections 6/9(c), Control of Narcotic Substances Act (CNSA), 1997. Through the impugned judgment, the appellants were convicted and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.500,000/- each (Rs. Five lac only). Benefit of section 382-B, Cr.P.C. was extended to them.

2. Brief facts of the prosecution case are that the complainant SIP Hamid Ali, while patrolling with his subordinate staff, received spy information regarding the transport of charas through a Suzuki pickup truck bearing No. KW-0377 coming from Bagh-e-Jorangi towards Landhi side. On the basis of such information, the complainant SIP Hamid Ali proceeded to the pointed out place and spotted the pickup truck which he then chased as the truck failed to stop, After some chase through a service road at the eastern wall of Darul-Uloom Korangi, the truck stopped and the driver and the passenger of the truck were apprehended who disclosed their names as Kaleem Baig and Iqbal Ahmed accordingly. The driver of the truck, appellant Iqbal Ahmed was searched from whom a VIGOTEL mobile phone and Rs.3000/- were recovered whereas from appellant Kalcem Baig who was the passenger, a Nokia mobile phone along with Rs.2,000/- were recovered. When the back of the pickup truck was searched, four bags were found; two white bags, one green bag and one yellow bag. A total of 107 packets were found within these four bags, each allegedly containing charas which was weighed and found to be 127 kilograms in total at a nearby scrap shop. A single packet containing two slabs was separated which weighed one kilogram for chemical examination and the rest was sealed separately. The complainant also demanded registration papers of the Suzuki pickup truck which the appellants failed to produce and as such, the same too was confiscated under section 550, Cr.P.C. Case property along with the appellants was brought back to the police station where FIR was lodged against the appellants under sections 6/9(c), CNSA 1997.

3. After usual investigation, challan was submitted against the appellants, whereafter a formal charge was framed against them by the trial Court to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined five witnesses namely PW-1 Hamid Khan who was the scrap dealer where the complainant weighed the contents of the bags, PW-2 ASI Zafar Iqbal who was a mashir of arrest and recovery, PW-3 PC Amir Shah who was the second mashir of arrest and recovery, PW-4 PC Abdul Razzaq, a person well-conversant of the complainant SIP Hamid Ali (deceased) hand writing and signature and lastly PW-5 SIP Mansoor Ahmed, the investigating officer of the case. Prosecution witnesses also produced a number of documents and other items in evidence which were duly exhibited. Statements of accused were recorded under section 342, Cr.P.C. wherein they denied the allegations made against them and claimed their false implication. They did not examine themselves on oath, but appellant Iqbal Ahmed examined DW Rehmat Khan and appellant Kalcem Baig examined DW Muhammad Faheem.

4. Learned trial Court, after considering the material available before it and hearing the learned counsel for the respective parties handed down the impugned judgment and sentenced the appellants as stated supra.

5. Learned counsel for the appellants has contended that no private person has been cited as witness to the arrest and recovery even though incident is alleged to have taken place in a busy area and the complainant had prior spy information; that the roznamcha entry regarding depositing the case property in the malkhana has not been produced; that the malkhana in-charge has not been examined; that safe custody of the narcotics has not been established by the prosecution; that there are some major contradictions in the evidence of the prosecution witnesses; that only one packet containing two slabs out of the whole case property was sent to the chemical examiner and no representative sample was taken from all the other packets; that the learned trial Court has committed grave illegality in convicting and sentencing the appellants on the basis of mis-reading and non-reading of evidence and as such for any or all of the above reasons, the appellants should be acquitted by extending them the benefit of the doubt. In support of his arguments, learned counsel has placed his reliance on case law reported as Muhammad Hashim v. The State (PLD 2004 SC 856), Amanat Ali and 2 others v. The State (2008 SCMR 991), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Qaisarullah and others v. The State (2009 SCMR 579), Ghulam Ara v. The State (2010 SCMR 1162), Ameer Zeb v. The State (PLD 2012 SC 380), Abdul Ghani and others v. The State and others (2019 SCMR 608), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Hussain Shah and others v. The State (PLD 2020 SC 132) and lastly Haji Nawaz v. The State (2020 SCMR 687).

6. Conversely, learned Additional Prosecutor General Sindh supported the impugned judgment while submitting that all four main PWs have been examined by the prosecution; that there are no major contradictions in their evidence which can safely be relied upon; that no private witness was available at place of scene; that the chemical examiner's report was positive and as such the appeals be dismissed. He has placed his reliance on the case law reported as Zeeshan Kazmi v. The State (PLD 1997 SC 406), Gul Rehman v. The State (2002 PCr.LJ 1810), Ali Muhammad v. The State (2003 SCMR 54), Muhammad Hashim v. The State (PLD 2004 SC 856), Jahangir Khan v. The State (2005 PCr.LJ 1506), Zulfiqar Ali alias Bila v. The State (2006 YLR 1056) and lastly Mohammad Riaz and 2 others v. The State (2006 SCMR 1378).

7. We have heard the arguments advanced by the learned counsel for the appellants as well as learned Additional Prosecutor-General, Sindh and have gone through the entire evidence available on record with their assistance.

8. Perusal of the record suggests that the incident took place on 20.06.2020 at about 1530 hours, the complainant SIP Hamid Ali received spy information regarding the presence of the appellants in a Suzuki pickup truck and that they were delivering narcotics. The appellants were apprehended accordingly and four bags were recovered from the back of the pickup truck which contained a total of 127 kilograms of charas. The case of the appellant Kaleem Baig, being the passenger and Iqbal Ahmed, being the driver of the pickup truck is distinguishable, as such the same will be discussed separately. As far as the case of appellant Kaleem Baig being the passenger of the truck is concerned, prosecution has failed to bring forth any iota of evidence against him. None of the prosecution deposing against him stated anything besides his mere possession in the truck. From his personal possession, only a Nokia mobile phone and Rs.2,000/- were recovered which in no way connected him to the four bags in the back of the truck nor did any of the prosecution witnesses suggest that the appellant Kaleem Baig was conscious of the presence of narcotics in the back of the truck. The Hon'ble apex Court, in the case of Hussain Shah v. The State (PLD 2020 SC 132) observed that:- "

6. As far as Abdul Sattar appellant is concerned it was alleged by the prosecution that he was a cleaner and a helper of his co-convict namely Hussain Shah and he was travelling in the same vehicle when the said vehicle was intercepted by the raiding party. It has been pointed out before us that according to the evidence brought on the record Abdul Sattar appellant also knew about existence of a cavity in the body of the relevant vehicle but nothing had been said by any prosecution witness about the said appellant having the requisite knowledge about availability of narcotic substance in such cavity of the vehicle. As a matter of fact no evidence worth its name had been brought on the record to establish that the said appellant was conscious about availability of narcotic substance in a secret cavity of the relevant vehicle in which he was traveling along with its driver. The law is settled by now that if the prosecution fails to establish conscious possession or knowledge in that regard then a passenger cannot he convicted solely on the basis of his availability inside a vehicle at the relevant time. This appeal is, therefore, allowed to the extent of Abdul Sattar appellant, his conviction and sentence recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. Abdul Sattar appellant shall be released from the jail forthwith if not required to be detained in connection with any other case." (emphasis supplied)

9. This aspect of the case, coupled with the defence plea raised by him and the deposition of DW Muhammad Faheem, creates doubts in the prosecution case. The principle of benefit of doubt needs little mention which has time and again been reiterated by the Hon'ble Apex Court such as in the cases of Faizan Ali v. The State (2019 SCMR 1649) and Kamran Shah v. The State (2019 SCMR 1217). The Hon'ble apex Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) has also observed that even if there is a single infirmity in the prosecution case creating sufficient doubt, the benefit of the same would go to the appellant. Therefore, while extending benefit of doubt to the appellant Kaleem Baig, he is acquitted of the charges levelled against him and impugned judgment to his extent is set aside. He shall be released forthwith if not required in any other custody case.

10. Coming to the case of appellant Iqbal Ahmed, he was allegedly driving the Suzuki pickup truck at the time of his arrest. With regard to his role, the prosecution witnesses have provided an uninterrupted chain of facts ranging from the arrest of the appellant and the seizure of narcotics to forensic analysis of the contraband. They are in comfortable unison on all the salient features regarding interception of the narcotics as well as all the steps taken thereafter. As far as the question of conscious possession is concerned, the appellant Iqbal Ahmed was in fact the driver of the truck as has been deposed by the two mashirs of arrest and recovery namely PW-2 ASI Zafar Iqbal and PW-3 PC Amir Shah and in the memo of arrest and recovery prepared by the deceased complainant SIP Hamid Ali who's signature on the same, too, was ascertained through PW-4 PC Abdul Razzaq. It has remained consistent view of the Hon'ble apex Court that the person driving the vehicle is in charge of the same and is presumed to know of the contents of the same. Reliance in this regard is placed on the case of Kashif Amir v. The State (PLD 2010 SC 1052), wherein it was 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 in-charge 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. State (1988 SCMR 1899) this court has observed that knowledge and awareness would be attributed to the in-charge of the vehicle." (emphasis supplied)

11. As far as the contention regarding no independent witnesses being associated in the process of arrest and recovery is concerned and all of prosecution's witnesses being police officials is concerned, there is no universal rule that evidence of an interested witness, per se, must be invariably corroborated by some other evidence. Police officials, being the state's peacekeepers and law enforcers are as good witnesses as any other and their evidence is subject to same standard of proof and principles of scrutiny as the standard applicable to any other category of witnesses. Despite the undeniable independent corroboration, in absence of any animus, infirmity or flaw in their evidence, the testimony of PW-2 ASI Zafar Iqbal and PW-3 PC Amir Shah can be relied upon without demur. We are fortified in this regard by the case of Hussain Shah and others v. The State (supra). Learned counsel contended that the complainant failed to get any witnesses prior to receiving the spy information, however section 103, Cr.P.C, in clear terms, is excluded for offenses falling under the Control of Narcotic Substances Act, 1997 by virtue of section 25 of the Act and said principle was enunciated by the Hon'ble apex Court in the case of Muhammad Hanif v. The State (2003 SCMR 1237), as such having little merit in the argument.

12. Safe custody of the recovered sample, too, has been sufficiently proven in that the complainant deposited the same in the malkhana on the same day and said entry was made within Register No.19 per the contents of the memo of arrest and recovery available at Ex.4/A. Again, PW-5 SIP Mansoor Ahmed, the investigation officer, deposed that he had received the case property in sealed condition and then delivered the same himself on the 22nd of June, i.e. 2 days after the arrest and recovery which was effected on 20.06.2020. This exercise was done within the 72 hours prescribed time. The chemical examiner, in his report under general remarks, also noted that the condition of the seals on the parcels was satisfactory, which too would negate any presumption of tampering. Reliance, in this respect, is placed on the case of Zahid and another v. The State (2020 SCMR 590). The only issue, however, is the fact that the complainant had only sent a single packet out of a total of 107 packets recovered. This one single packet had two slabs within it, each weighing 500 grams; totalling to 1000 grams (1 kg). While the recovery of the bags and packets is not doubtful, the nature of the contents of the same is as the complainant failed to gather representative sample from every single packet. In the landmark case of Ameer Zeb v. The State (PLD 2012 SC 380), the Hon'ble apex Court has been pleased to observe that:- As is evident from the resume of the precedent cases mentioned above, the trend of authority of this Court leans overwhelmingly in favour of obtaining and sending for chemical analysis a separate sample of every separate packet/cake/slab of the substance allegedly recovered front an accused person's possession and for its separate analysis by the Chemical Examiner in order to confirm and establish beyond doubt that the entire quantity of the allegedly recovered substance was indeed narcotic substance. It is our considered opinion that a sample taken of a recovered substance must be a representative sample of the entire substance recovered and if no sample is taken from any particular packet/cake/slab or if different samples taken from different packets/cakes/slabs are not kept separately for their separate analysis by the Chemical Examiner then the sample would not be a representative sample and it would be unsafe to rely on the mere word of mouth of the prosecution witnesses regarding the substance of which no sample has been taken or tested being narcotic substance. It may be true that at least in some situations the Control of Narcotic Substances Act, 1997 stipulates disproportionately long and harsh sentences and, therefore, for the purposes of safe administration of criminal justice some minimum standards of safety are to be laid down so as to strike a balance between the prosecution and the defence and to obviate chances of miscarriage of justice on account of exaggeration by the investigating agency. (emphasis supplied)

13. Besides Ainir Zeb's case (supra), in earlier pronouncements of the Hon'ble apex Court such as in the case of Gulshan Ara v. The State (2010 SCMR 1162) the conviction of the appellant was altered from that under section 9(c) to one under 9(b) and in the case of Qaisarullah and others v. The State (2009 SCMR 579) the conviction of the appellant was altered from that under section 9(c) to one under 9(a) and in both these cases, the Court only considered the amount sent to the chemical examiner against the accused in the concerned cases. Following the above dicta, in the present case only a single slab of 1000 grams was sent to the chemical examiner and even with that, prosecution failed to disclose which bag that slab was taken from. As such, safe criminal administration of justice calls for only 1 kilogram of charas to be considered against the appellant Iqbal Ahmed. The possession of 1000 grams, having been proven against the appellant Iqbal Ahmed, would bring his case from one under section 9(c) to one under section 9(b) of the C.N.S.A., 1997. As per the sentencing guidelines provided in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362), the requisite sentence is imprisonment for one year and nine months with fine of Rs.13,000/-, in default whereof further imprisonment of four months and 15 days. As such, the conviction of the appellant, as awarded by the trial Court vide impugned judgment, is altered to being one under section 9(b) of the C.N.S.A., 1997 and the sentence is altered from life imprisonment to one year and nine months of rigorous imprisonment with fine of Rs.13,000/-, in default whereof the appellant shall undergo further imprisonment for four months and 15 days.

14. Captioned criminal appeals stand disposed of in the above terms. JK/K-10/Sindh Sentence altered.