2015 P Cr (PLP)

RIAZAT ALI SAHAR, J.

Present Jail Appeal calls in question the conviction and sentence (R.I. for life for the establishment of charge of section 9(c), Control of Narcotic Substances Act, 1997), inflicted upon the appellants, in connection with Criminal Case No. 32 of 2009, by learned Special Court (C.N.S.) Jacobabad by means of its Judgment, passed on 16-3-2013.

2. Facts of the case, succinctly stated, are that on December 13, 2009, Collector of the Customs Department was informed as to trafficking of a consignment containing huge quantity of contraband material from Afghanistan to Sindh by means of a Truck (TKA-171) and he, thus, directed Deputy Superintendent to do the needful, who constituted a Team, heading himself and did snap checking of the vehicles, coming from Quetta. Meanwhile, the stated Truck arrived and the same was got stopped and was found to be loaded with apples. During checking, the Truck was found carrying 40 bags of Charas, being weighing 1600 kilograms. There were in all 16 slabs and 20 grams from each slab were segregated and sent for analysis. The present two appellants were found to be available in the vehicle, which was taken into possession along with the contraband material and the F.I.R. was lodged accordingly.

3. To the charge, the accused had pleaded "not guilty" and as such were tried and at their trial, prosecution elected to adduce testimony of three witnesses i.e. complainant Inspector Ghulam Qasim; he produced entries of daily diary, memo. of arrest and recovery; Mashir Amir Bux and Investigating Officer Muharam Ali Kalhoro.

4. In their statements under section 342, Code of Criminal Procedure, 1898 (for short, "the Code"), the accused have vouchsafed their innocence consequent upon false implication and planting upon the recovery as such, stating that they had been taken from Wagon stand, Jacobabad and were then involved in the case. They did not lead any evidence in defence however.

5. It has been submitted on behalf of the appellants that the recovery has not been effected from physical possession of the appellants. He cited Muhammad Aslam v. The State, 2011 SCMR

820. Next submission was that driving licence was not found to be in the name of any of the appellants and, therefore, driving of Truck stands not proved and that the ownership of the Truck being not of any of the appellants, they cannot be saddled with any liability. It was also submitted that there is delay in sending the sample; he quoted Amjad Ali v. The State, 2012 SCMR 577, and that the witnesses are from the Customs Department and, therefore, they are interested and their testimony cannot be relied upon and that, thus, the trial Court was unjustified in believing the said testimony. It has further been submitted that the recovered property has been foisted upon the appellants, actually no such recovery has been effected from them but the fact is that the appellants were arrested from Wagon stand, Jacobabad and that there have been enormous discrepancies in the evidence, that the prosecution has adduced. It has additionally been submitted that as per prosecution case the appellant Khan Bahadur was not driving the vehicle but appellant Alamgir was doing so.

6. State counsel, conversely, prayed for dismissal of appeal, submitting that no animosity has been alleged against the Customs officials to plant the huge quantity of contraband material upon the appellants and that they are as good witnesses as the others and the evidence of the witnesses depicts that no suggestion as to the defence plea has been put to them in their cross-examination and that, therefore, the trial Court was within four corners of law in believing the testimony of the officials and basing the same for conviction and awarding punishment accordingly. He further submitted that Khan Bahadur had accompanied Alamgir in the Truck, loaded with the contraband material and, therefore, he is presumed to be in knowledge of the recovered contraband material. He relied upon Muhammad Sadiq v. The State, 2005 SCMR 1689 and Ikram Hussain v. The State, 2005 SCMR 1487.

7. Before the submissions be dilated upon, this Court has noted that F.I.R. of this case appears not to have been incorporated in the book (printed book with paging), provided under section 154 of the Criminal Procedure Code. Section 154, Cr.P.C. is reproduced hereunder:-- "

154. Information in cognizable cases.

Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the [Provincial Government] may prescribe in this behalf."

8. It is further noted that the F.I.R. was also not prepared properly, keeping in view the prescribed form as provided under Rule 24.5 of the Police Rules, 1934 (to be referred to as the Rules). Section 154 of the Code requires the information qua the cognizable to be incorporated in the book provided thereunder whereas Rule 24.5 of the Rules provides a pro forma, which is to be used for the incorporation of the narration as regards the cognizable offence, reported to the Station House Officer or anybody else in charge of the Station. Such form is as follows:--

9. Present case's F.I.R., indeed, is not in such form but the format thereof is different and the same is reproduced hereinbelow:-- FIRST INFORMATION REPORT (F.I.R.)

1. Case No. 7-Cus/Seize/SASS/Lrk/2009

2. Date and Time of Seizure 13-12-2009 @ 1:00 HRS

3. Place of Seizure Customs Check Post Jacobabad

4. Code of Informer JANI C/O MR. ABDUL RASHID COLLECTOR CUSTOMS HYDERABAD

5. Name of Complainant Ghulam Qasim Abro Inspector

6. Name of Accused Persons

1. Noor Muhammad son of Dost Muhammad resident of Bazar Chaman District Qilla Abdullah (Driver Truck No.TKA-17)

2. Mateeullah son of Ghulam Dastagir resident of Killi Haji A. Rahim Khan District Pashin. (Driver Truck No.TKA-171).

7. Description and Quantity of seized Goods. Narcotics CHARAS F/o Description Quantity Value (Rs.) 1 Narcotics CHARAS F/o 40 Katta, Plastic Bags each contain 40 Slab/Cake each of 1 Kg Total 1600 Kgs (Gross) 12,800,000 2 Apple (Fresh Fruit) 200 Wooden Crate 40,000 3 Isuzo Mini Truck bearing Regd. No.TKA-171 Chasis No.TSD-45-1279888 (As per Reg. Book) One 1,500,000

8. Specific Provisions of Law Violated. (i) Section 6, 8 and 9(c), Control of Narcotic Substances Act, 1997 punishable under section 9(c) of Control of Narcotic substances Act, 1997.

9. Names of seizing staff

1. Sikandar Akbar Panhwar Deputy Superintendent

2. Ghulam Qasim Abro Inspector

3. Moharam Ali Kalhoro Inspector

4. Rahil Ali Inspector

5. Ahmed Hussain Inspector

6. Ayaz Ali Shah Inspector

7. Muhammad Ali Pechuuho Inspector

8. Naseem Ahmed Jokhio Inspector

9. Sepoys Amir Bux, Nazir Ahmned, Aijaz Hussain, Dhani Buyx, Allah Bux, Ghous Bux, Hamzo Khan, Mumtaz Ali, Irshad Ali, Wajid Ali and Khalid Hussain Driver.

10. The difference being there showing deviation from law, Court, during the course of arguments, queried the representative of the Department. The queries and their replies were submitted by the department; those are as follows:-- QUERIES REPLY TO QUERIES

1. Whether the Department has been entrusted the book of F.I.R. under section 154, Cr.P.C. as specific definition/ingredients provided in section 154, Cr.P.C." No.

2. Whether in absence of the book under section 154, Cr.P.C. the officer can furnish a report on an unprinted and plain paper and the same can be treated as an F.I.R. within the domain of section 154, Cr.P.C. If so, the relevant Notification, Rules, Regulations or any Law and procedure be produced on 9-9-2013 at 1-00 p.m. in the High Court of Sindh, Bench at Sukkur before his lordship. The practice of reporting F.I.Rs. on the unprinted and plain paper has been in practice in almost all the field formation of Pakistan Customs. Copies of the F.I.Rs. furnished on unprinted and plain paper by the field formation other than this Collectorate are enclosed as annexure "A". Sd/- (Muhammad Asif Marghoob Siddiqui) Collector, Model Customs Collectorate, Hyderabad

11. The Court finds that the F.I.R. has been registered by the Customs Authorities, which are governed under the special law, i.e. Customs Act, 1969. Perusal of such law stipulates that it does not require the F.I.R. to be in any format and, therefore, when the special law is silent as to anything, that particular thing, if provided under the general law, has to be done as the general law requires. General laws, germane hereto, are the Code and the Rules and, thus, section 154 of the Code and Rule 24.5 of the Rules come into play.

12. The question arises now, is as to what is the effect of the F.I.R., that has been registered with infraction of the law, as stated above. To reach a resolve, it is advantageous to understand the purpose of the F.I.R. Object of the F.I.R. is to set the machinery of law into motion. One may refer to Dalip Singh and others v. The State of Punjab, AIR 1953 SC

364. In other words, the information of the commission of a cognizable offence is given to Police by the informant, which, then, proceeds to unearth the real facts thereof by investigating the matter and thereafter submits the result before the Court. This has to be done with twofold object: firstly, no offender should go unpunished and no innocent should be put to jeopardy and, secondly, the society should be free of crimes by creating deterrence. So, the F.I.R. is merely intended to move the Police to undertake the exercise of unfolding real facts. A Division Bench of this Court in Mazhar Hassan Naqvi v. Dr. Zafar H. Zaidi, VC, Karachi University, PLD 2001 Karachi 269, observed as follows:-- "

13. We have carefully considered the respective contentions urged before us and the case law cited which, prima facie, indicates some diversions of judicial opinion. Nevertheless a consideration of the relevant provisions of the Code leads us to the irresistible conclusion that truth or otherwise of the information given to the police can only be discovered after the concerned police officer embarks upon investigation. Even in cases, where the information given is ex facie unbelievable or the allegations levelled are patently absurd a police officer is required to consciously apply his mind in terms of the proviso to section 157 and communicate his decision not to investigate both to the concerned Magistrate and the informant. Obviously such application of mind or communication of decision cannot take place unless the information given is recorded in terms of the requirements of section

154. With profound respects we are of the view that to say that a police officer is required to act under section 157 or make some preliminary investigation to determine the truth or otherwise, as to the information conveyed would amount to putting the cart before the horse. In the circumstances we entirely agree with the construction of the relevant provisions of law by Mr. Zubedi and are unable to share the view put across by the learned Additional Advocate-General."

13. In Gulzar Khan v. The State, PLD 1982 AJ&K 28, the Court has held that omission to enter the substance of information as to the commission of a cognizable crime in the book, provided under section 154 of the Code is curable. Court's observation is as under:-- "

3. In criminal cases, if the necessary proof is available on the record and guilt is established beyond reasonable doubt, mere delay in lodging the F.I.R. or the fact that initial report given at Police Station was not entered into the relevant register and was withheld, would not suffice to throw away the whole of the prosecution case as being false. This, at the most, would put the Court on guard to scrutinize the prosecution evidence cautiously."

14. Nevertheless, in Rabia Bibi v. The State, 1968 PCr.LJ 350, it has been observed as follows:-- "

6. I have carefully gone through the evidence with the assistance of the learned counsel for the petitioner. I am afraid I have not been able to find anything in favour of the petitioner. It is a cast-iron case unfortunately, and the only submission which the learned counsel could make on behalf of the petitioner is that the F.I.R. in this case was lodged after completion of the investigation of the case by the Head-constable concerned. Be that as it may, the trial does not become illegal even if this argu ment is accepted. The only possible result which can accrue is that the F.I.R. becomes inadmissible in evidence but that would not injure the prosecution case as the eye-witnesses have no animosity against the petitioner and the recovery has been effected from the lady of the stolen articles."

15. In Nazir Ahmed and another v. The State, 1976 PCr.LJ 993, it has been observed that defect in the F.I.R. does not make the trial illegal and that, therefore, the defect in the F.I.R. is at the most negligence of Police. In the case of Ratanchand Radhalkisondas v. The State, AIR 1960 Bom. 146 and West Bangal Press Workers and Employees v. Art Union Printing Works Private Ltd and others, AIR 1962 Cal. 641, it has been ruled that because of negligence of Police, F.I.R. does not become invalid and the trial, thus, is not effected thereby. In Khadim Ali and another v. The State, 1996 SCMR 1855, it has been held that defective F.I.R. does not vitiate the proceedings. Relevant observation is as under:-- "

6. Reverting to the second contention it may be observed that an F.I.R. is not in the nature of a formal charge. In Rehman v. State (PLD 1968 Lahore 464) in which implicit reliance was placed on State v. Kh. Nazir Ahmad (AIR 1945 PC 18) it was held and which we also approve that the receipt and recording of an information report is not a condition precedent to the setting in motion of criminal investigation. Notwithstanding the consequence that the defective F.I.R. or even its absence deprives the accused of his right to cross-examine the first informant on its basis, or it was not at all proved at the trial would not vitiate the conviction, for, no information report is substantive evidence by itself. It can only be used under section 157 of the Evidence Act (I of 1872) corresponding to Article 153 of Qanun-e-Shahadat, 1984, as a previous statement to corroborate or contradict a statement made in Court. Without diminishing the importance of the F.I.R. no adverse inference can be drawn from the defective report photo copy Exh.P/A-5, so as to vitiate the trial of the petitioners. This plea was pressed into service before the High Court which was rightly repelled holding that the photo copy of the report Exh.P/5-A would certainly qualify to be a report notwithstanding its being not in the prescribed form. Nonetheless it is an information of the commission of the offence of trafficking in the illicit arms and ammunition within the purview of section 13-E of the Arms Ordinance, through which the prosecution machinery had been set in motion. The legal requirement of enabling the prosecution to take cognizance of the case has thus been sufficiently complied with and no prejudice is shown to have been caused to the petitioners."

16. Plethora of case law shows that the incorporation of the substance, narrated by the informer, regarding cognizable offence being committed under the book of 154 of the Code is the requirement of law and deviation therefrom exposes the Police Officer guilty of disobedience of direction of law and he can, therefore, be prosecuted as such. Nonetheless, the F.I.R. itself does not become invalid because of omission of the Police and its value, therefore, does not diminish thereby. F.I.R. of the present case, as such, cannot be treated to be illegal. This Court, nevertheless, is not inclined to take any action and/or recommend it to be taken against the lodger and/or scribe of the F.I.R. for the reason that this has been the practice of the Customs Authorities for years together. The Court, however, feels it apt to order for the procedure as to the registration of the F.I.R. being followed in future after receipt of this judgment and deviation therefrom would expose the delinquent guilty of the disobedience of direction of law. In this regard the department, for time being, shall have to borrow the book of 154, Cr.P.C. from concerned authorities in their respective jurisdictions in accordance with law.

17. Coming to the facts of the case, the Court has examined the material, available on record. It appears that the trial Court has recorded statements of Ghulam Qasim, Amir Bux and Muharam Ali. All of them have unanimously stated that it was 13-12-2009 when a Team was constituted pursuant to directives of the Collector based on its information as to the trafficking of narcotic material from Afghanistan to Sindh and it was in this backdrop that they went to the place of incident and checked the vehicles and ultimately found a said Truck and found it consigned with apples; however, underneath the apples, forty bags of Charas were hidden, which were secured and the Truck together with the contraband material was taken into custody under the mashirnama and the F.I.R. was registered. The Charas came to be 1600 kilograms consists of 1600 slabs, each one kg and 20 grams from each of 1600 slabs were sent to the chemical analyst, who has certified it to be Charas. Such account of the evidence has gone unshaken, notwithstanding the fact that the witnesses were subjected to a lengthy cross-examination. Entries appear to have been produced to substantiate the movement of the officials and report of chemical analyst has also been produced, which establishes that the parcel, sent to him, was Charas.

18. Contention as to the possession of the recovered contraband material not being exclusive, it may be observed that it is bereft of substance for the reason that physical possession and/or constructive possession of the narcotic material make the possessor liable to be punished. It is not necessary that the possession should be physical. In the present case, a Truck, driven by one of the appellants, has been found to be loaded with contraband material. Therefore, possession thereof cannot be said that the same was not to be with the appellants, who had been controlling the Truck. Muhammad Aslam's case (supra) was quoted to force the submission. The said case is distinguishable for the reason that the accused therein was not stated by any of the witnesses to be seen to have carried the contraband material but was said to be standing near thereto; whereas the present case speaks of the availability of the appellants in the vehicles, which was in their control.

19. Submission that the appellants were not found driving the vehicle is without any force inasmuch as it has been stated in the F.I.R. and has been seconded by the witnesses that one of the appellants was driving the vehicle. Assertion that the driving licence was not in the name of the appellants is also without merit, for, driving is an art and it is not coupled with the licence, which merely is legal authority to do that particular act. Thus, it cannot be said that one having no driving licence cannot drive a vehicle. Contention that none of the appellants is the owner of the vehicle is not tenable, in that, the appellants were found controlling the vehicle, which was loaded with contraband material. It is not necessary that the driver should also be the owner of the vehicle or that only owner of the vehicle is liable and the driver cannot be saddled with any liability, rather the driver, who is in actual possession of the vehicle and the material, is responsible; the owner may also be guilty in some cases but not necessarily in every case.

20. As far as the submission with regard to the witnesses being of Customs Department, it is suffice to state that time and again the superior Courts have held that the officials are also good witnesses like others and that their evidence cannot be brushed aside merely for the reason of their being officials; however, they can be disbelieved if they are shown to be inimical and/or interested. In Afsar Khan v. The State, 2008 SCMR 1219, it was observed as under:-- "

4. No animosity of the prosecution was shown to exist for involving the petitioner falsely in a serious case of a narcotics. Even the recovery of a huge quantity of Charas was not denied by him. The High Court had given sound reasons for distinguishing the case of the co-accused Mst. Zohra for acquitting her of the charge. The report of the Chemical Examiner was also positive. The High Court as well as the trial Court have properly appraised the evidence in coming to a definite conclusion of the guilt of the petitioner to which no exception can be taken. This is not a fit case for grant of leave to appeal"

21. In the present case, as observed earlier, no animosity appears to have been alleged against the witnesses and, therefore, in absence of such motive, this Court does not find any reason to discard the testimony of the officials.

22. In presence of evidence, gone unshaken, as stated above, mere delay in sending the sample can hardly be of any importance and this Court, therefore, is not inclined to give weight thereto. To force the contention as to the delay, Amjad Ali's case (supra) was cited. In the said case, delay was considered material. However, in Shah Muhammad v. The State, 2012 SCMR 1276, august Supreme Court has been pleased to observe as follows:-- "

8. Regarding delay in dispatch of samples to the Forensic Laboratory for examination, suffice it to say that we have to realize the ground realities of less means of communication and manpower with the police and over and above the absence of any evidence to presume that because of delay, dispatch samples were tampered with, therefore, this argument would not be available to the learned counsel for the appellant."

23. This view of the Supreme Court of Pakistan favours the accused and it is settled principle of administration of criminal justice that the view, when there are two contrary views, that favours the accused, has to be followed. Contention regarding the delay is, therefore, repelled.

24. As to the plea of the appellants that they had been arrested from Wagon stand, Jacobabad, it may be observed that such plea is unsupported by any evidence inasmuch as nothing has been adduced in substantiation thereof. In Muhammad Sadiq's case reported in 2005 SCMR 1689, allegations were denied by the accused and the august Supreme Court was pleased to observe as follows:-- "3. . It was urged by the learned counsel for the petitioner that the petitioner, who was a school teacher, had been falsely implicated in the case by the police. Unfortunately, nothing was brought on record to substantiate the false implication of the petitioner by the police. No illegality or infirmity in the impugned judgment has been pointed out by the learned counsel warranting interference by this Court, therefore, this petition being devoid of merit is dismissed and leave to appeal declined accordingly."

25. In Ikram Hussain's case (supra), honourable Supreme Court pleased to observe as under:-- "

5. It may be noted that in terms of section 29(d) of the Control of Narcotic Substances Act, 1997 unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence. We have asked the learned counsel to explain as to why he had not discharged the burden to show that he was not in the possession of the narcotics i.e. Charas, his reply was that report Exh.D.B. is the document which indicates that the petitioner immediately informed to the concerned Authorities about the event which took place prior to taking into possession the narcotics but this report has not been considered. We are afraid, this argument is not available to him in view of the discussion of the High Court in the paragraph which has been reproduced hereinabove."

26. The stance, therefore, is bereft of force and cannot be given weight to as such, particularly in view of the fact that the evidence of prosecution substantiates the recovery.

27. Insofar as the submission that one of the appellants was merely travelling is concerned, it may be observed that he had been travelling right from the start of the journey and that he has been alleged to be driver of the vehicle. In Muhammad Noor and others v. The State, 2010 SCMR 927, Supreme Court of Pakistan, after referring to various Judgments, was pleased to observe as follows:-- "

9. Keeping in view the above principles of law, the appellant Muhammad Noor is Driver, therefore, he is in possession of the vehicle and also in possession of the articles whatever lying in it. The allegations against the appellant Muhammad Ramzan is that on his information secret cavities of the vehicle were opened and Charas was secured. Thus, from such information it has been established that he had knowledge of the availability of Charas in the secret cavities of the vehicle. Therefore, the appellant Muhammad Ramzan is also involved in the case along with the appellant Muhammad Noor. Hence, the case has been proved against both the appellants Muhammad Ramzan and Muhammad Noor."

28. In the case of Kashif Amir v. State reported as PLD 2010 Supreme Court 1052, the honourable Supreme Court has observed as under:-- "3. .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 C.N.S.A. 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. 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 the C.N.S.A. burden shifts 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 the Chemical Examiner's reports 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 C.N.S.A. In this behalf reference can also be made to the case of Ikram Hussain v. The State (2005 SCMR 1487) wherein it has been held that in terms of section 29(d) of the Control of Narcotic Substances Act, 1997 unless otherwise proved, the presumption would be that the person who is found in possession of the narcotics has committed an offence." In the instant case, according to prosecution version, both the appellants were driver and co-driver of the Truck in question. Though, the appellants have simply denied to be drivers of the Truck, but in their statements recorded under section 342, Cr.P.C, they have never disowned their association with each other and have taken the same defence plea that on 13-12-2009, they were apprehended by complainant party from Wagon Stand Jaccobabad and then involved in this case falsely.

29. Therefore, this Court is not inclined to give weight to such assertion primarily for the reason that the two appellants are to be presumed to be having knowledge of the trafficking of the material, which has been proved to have been recovered from the Truck, the appellants were available on the truck and that none of the appellants has been able to justify that he was not in knowledge of the material.

30. For these particular reasons, the instant Jail Appeal being devoid of merits stands dismissed with the result that the impugned Judgment is maintained.

31. Copy of this order shall be circulated to Custom Authorities to ensure compliance. HBT/N-30/K Appeal dismissed.