Full Judgment Text & Judicial Ruling

2022 P Cr. L J Note 109 [Sindh (Larkana Bench)] Before Muhammad Saleem Jessar and Adnan Iqbal Chaudhry, JJ RAHAMUDDIN BAREECH and others---Appellants Versus The STATE---Respondent Criminal Appeals Nos. D-37, D-42 and Criminal Revision Application No. D-9 of 2018, decided on 12th March, 2019. (a) Control of Narcotic Substances Act (XXV of 1997)--- ----Ss. 48, 32 & 74---Vehicle involved in transporting narcotic substance---Return of such vehicle ---Scope---Vehicle was taken into custody by the local police being involved in transportation of narcotics---Application for return of said vehicle filed by acquitted accused was dismissed by the Trial Court on the ground that since appeal had been filed by the convicted accused, which was still pending, therefore, at such stage said application could not be allowed---Validity---Record showed that while passing order for disposal of case property, the Trial Court had ordered that the truck recovered from acquitted accused, driver and cleaners, be restored to them in accordance with law after expiry of appeal period---Applicants driver and cleaner of the vehicle were acquitted while three other accused were convicted and sentenced---Convicted persons preferred appeals against their conviction and sentences, however, driver and cleaners were acquitted, meaning thereby that neither they nor the said vehicle was in any manner involved in drug trafficking, and since no appeal was filed by the state against the acquittal of driver and cleaner therefore their acquittal on the expiry of period of limitation had attained finality and, thus, they along with the said vehicle were exonerated from the said crime---Fate of the appeals filed by the convicted accused, whether the same were allowed or dismissed, would not affect the case of the acquitted accused in any manner nor the order for disposal of the vehicle was under challenge before any court---No occasion existed for the Trial Court to turn down the application for returning the vehicle, in circumstances. (b) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that on spy information three accused persons were transporting charas in truck, complainant party (police) intercepted the said truck and arrested five persons and recovered 40 slabs of charas, weighing 20 kilograms from three persons---Two other persons, i.e. driver and the cleaner of the vehicle were also involved in the crime---Complainant alleged that the driver of the vehicle informed him that Rs. 30,000/- was being paid to him for each trip by the drug traffickers, however, said statement of the complainant did not find support from evidence on record---Complainant carried out the personal search of the three alleged narcotic sellers and a total sum of Rs. 2,500/- was recovered from their possession---According to the complainant (police official), nothing was recovered from the driver and cleaner of the vehicle, thus, there was nothing to prove that either Rs. 30,000/- were available with the three alleged narcotics sellers which were to be paid to the driver at the end of journey nor was there anything on record to show that the said amount was already paid to the driver and was available with him---Evidence on record did not support the statement of the complainant in any manner, whatsoever--- Credibility of the complainant, in circumstances, was tarnished, particularly when all the witnesses in the case were Police Officials---Recovery was allegedly made from the laps of the three accused persons---In case the driver and cleaner were hand in glove with the alleged narcotic sellers, who were paying the driver a sum of Rs. 30,000/- per trip, then prudence demanded that the narcotics should have been hidden somewhere in the vehicle, otherwise, if a person was travelling as a passenger only he would have a fraction of the said amount of Rs. 30,000/- for his journey---Statement of complainant showed that there were groceries in the vehicle, if it was assumed that the contraband was hidden in the groceries, it would not have been so easy for the complainant to recover the same---In that case, it would have been proved that the driver and cleaner were also party to such illegal trafficking of the drugs---Complainant in his deposition stated that he personally searched all the five accused, and although some meagre amount was recovered from the accused, nothing was recovered from the driver and cleaner---Said single fact created a lot of doubt in the prosecution case---Record transpired that there was a contradiction with regard to packing of the recovered charas in the evidence of the prosecution witnesses---Investigating officer during cross-examination admitted that he did not inspect the place of wardat---Investigating Officer did not try to get information from the Police Lines, which was responsible for posting Police Officials at the post/place of occurrence---Circumstances suggested that the Investigating Officer failed to perform his duty---Failure of Investigating Officer to interrogate the Police Officials posted on the check post on the day of occurrence showed and proved that he did not perform his duty honestly as a professional which created a serious dent in the prosecution case as all the witnesses in the present case, were Police Officials and also subordinate to the complainant---No hindrance was in the way of the Investigating Officer to trace and record statement of any Police Official posted at check post on the said date, but he failed to do so---Circumstances established that prosecution had not succeeded in proving its case against the accused---Appeal against conviction was allowed, in circumstances. (c) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c)---Possession of narcotics ---Appreciation of evidence---Non-association of natural witnesses---Delay in sending recovered narcotic---Safe custody---Non-production of diary of deposited of case property in Malkhana---Effect---Investigating Officer of the case had stated that the case property was deposited in the Malkhana, however no such Malkhana entry was produced and the incharge of Malkhana was not produced as a witness nor any other person connected with the safe custody of the seized charas was produced---Police was acting on spy information, therefore, efforts should have been made to arrange mashir from the locality well in advance as the time of incident was about 10.00 a.m. which was a busy hour and people were available---Samples from the narcotic drugs were seized on 16.3.2017 but were sent to the laboratory on 20.3.2017---Codal formalities prescribed for dispatch of samples of seized drugs were not complied with which rendered the Chemical Examiner's report doubtful---Appeal against conviction was allowed, in circumstances. Muhammad Yousuf v. The State 2017 MLD 1471; Umed Ali v. The State 2018 MLD 1311 and Shoaib Ali v. The State 2018 MLD 1835 ref. Umed Ali v. The State 2018 MLD 1311 rel. (d) Criminal Procedure Code (V of 1898)--- ----Ss. 154 & 156--- Registration of FIR--- Investigation--- Scope---Investigation of a case did not mean to simply follow the statement made in the FIR by the complainant---Investigating Officer was bound to collect all the available information and placed the same in juxtaposition to reach a conclusion by separating the grain from chaff. (e) Criminal trial--- ----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story. Tariq Pervaiz v. The State 1995 SCMR 1345 rel. Abid Hussain Qadri for Appellants (in Criminal Appeal No. D-37 of 2018). Mujahid Ali Jatoi for Appellants (in Criminal Appeal No. D-42 of 2018). Irfan Badar Abbasi for Applicant (in Criminal Revision Application No. D-9 of 2018). Mohammad Noonari, D.P.G. Sindh for the State. Dates of hearing: 26th February and 12th March, 2019. JUDGMENT MUHAMMAD SALEEM JESSAR, J.---Through this common judgment, we intend to dispose of above two criminal appeals arising from a common judgment dated 28.05.2018, passed by Sessions Judge/ Special Judge (CNSA), Jacobabad in Special Case No. 16 of 2017, and the above criminal revision application, whereby the applicant Sardar Khan Khoso seeks return of the seized vehicle. 2. The above named appellants were sent-up to face their trial for the commission of offence under section 9(c), Control of Narcotic Substances Act, 1997 bearing Crime No.37/2017 Police Station Saddar Jacobabad. 3. Briefly, the facts of prosecution case, as narrated in FIR No.37/2017 lodged by Inspector Ayaz Ahmad Pathan at Police Station Jacobabad on 16.03.2017 are that; on the said date, while patrolling the area, he received spy information that three accused persons are transporting charas from Quetta in a Mazda Truck bearing registration No.TKR-284 Quetta, which was crossing bypass. On receipt of such information, the complainant, along with his subordinate staff, held naka-bandi at bypass near Shambay Shah check post. At about 1000 hours, they saw the said Mazda truck coming from Baluchistan side, wherein fivepersons were sitting, out of them one was having black colour bag on his shoulder, other was having black colour shopper in his lap and third person was having bundle (Gandhri) of clothes in his lap. The complainant party got alighted those five persons from the said truck and on enquiry, the person having black colour bag in his shoulder disclosed his name as Rahamuddin Pathan, in whose bag 20 slabs of charas were found and the complainant recovered Rs.1000/- from his possession. The person having black colour shopper disclosed his name as Imdad Ali Kharani and 10 slabs of charas as well as 43 bags of Surf were found in the said shopper and Rs.800/- were also recovered from his possession, while the third person, who was having bundle (Gandhri) of clothes in his lap, disclosed his name as Muhammad Bakhsh Jatoi and 10 slabs of charas, as well as, "rawas" were found lying in said bundle and Rs.700/- were also recovered from his possession. The fourth person disclosed his name as Sardar Khan, who was driver of the truck and fifth person disclosed his name as Shafi Muhammad, who was the cleaner of the truck. They further disclosed that the above named three persons were business men of the charas and they used to give them Rs.30,000/- for each trip. The complainant tried to associate independent person from the passing vehicles to act as mashirs, but they refused. Thereafter, the complainant appointed ASI Ashiq Ali and ASI Munir Ahmad as mashirs, and weighed each slab of charas, which was of 500 grams, thus total of 40 slabs of charas became 20 K.Gs. He prepared such memo of arrest/recovery on the spot. Thereafter, the accused persons and recovered case properties were brought at PS, where the complainant lodged the cited above FIR. 4. A formal charge was framed against the accused persons at Ex.03, to which they pleaded not guilty and claimed their trial vide their pleas at Ex.3/A to 3/E. 5. To substantiate its case, the prosecution has examined complainant Inspector Ayaz Ahmad at Ex.04. He produced memo of arrest/recovery at Ex.4/A, FIR at Ex.4/B, and attested copies of DD entries Nos.5, 10, 11 (one sheet) at Ex.4/C. PW.2, HC Ghulam Murtaza has been examined at Ex.05. He produced RC No.45 at Ex.5/A, attested copies of DD entries Nos.12 and 28 (one sheet) at Ex.5/13. PW.3, ASI Ashiq Ali has been examined at Ex.06. PW.4, I/O SIP Shabbir Ahmed Sahito has been examined at Ex.07. He produced report of Chemical Examiner at Ex.7/A. Then, learned I/C DPP for the State has closed the side on behalf of prosecution vide statement at Ex.08. 6. The statements under section 342, Cr.P.C. of the accused persons were recorded at Ex.09 to 13, wherein they denied the allegations of the prosecution levelled against them. They claimed their innocence by stating that they have been falsely implicated by the police. However, they neither examined themselves on oath, nor led any sort of evidence in their defence, except accused Sardar, who stated that he was driver of the Mazda truck, police alighted crates of apples from the truck and harsh words were exchanged between him and the Police, on which he has been falsely involved in this case. He produced P.S copy of bilty (receipt for transportation of goods) at Ex.12/A and examined one Bakhtiar Ahmed at Ex. 14 in his defence. However, he did not examine himself on oath under section 340(2), Cr.P.C. 7. The trial Court, after examining the evidence on record and after hearing the arguments of learned counsel for the parties ordered as under: "In the light of above discussion, I am of the view that the prosecution has failed to prove its case against accused Sardar and Shafi Muhammad beyond shadow of reasonable doubt, therefore, they are acquitted under section 265-H(1), Cr.P.C. by giving them benefit of doubt from the charge of this case. They are present in custody of District Prison Jacobabad. They are remanded back to District Prison Jacobabad with the direction to the Jail Superintendent to release them at once, if they are not required to be detained in any other custody case. While the prosecution has successfully proved the guilt of the remaining accused persons, namely, Rahamdin, Imdad Ali and Muhammad Bux beyond shadow of reasonable doubt. Admittedly, 10 KG charas lying in black colour bag was recovered from exclusive possession of accused Rahamdin, while 05 KG charas lying in black colour plastic shopper was recovered from exclusive possession of accused Imdad Ali and 05 K.G charas wrapped in clothy pile (Gandhri) was recovered from exclusive possession of accused Muhammad Bux, therefore, it is established beyond shadow of doubt that they have committed the offence, however, while taking lenient view and applying policy laid down in the case of Ghulam Murtaza and another v. The State, reported in PLD 2009 Lahore-362, accused Rahamdin son of Noor Muhammad Barech was sentenced to under rigorous imprisonment for the period of 12 years and 06 months and to pay fine of Rs.60,000/- and in default in payment of fine, he shall further undergo 09 months' SI, and accused Imdad Ali son of Sikander Ali Kharani and Muhammad Bux son of Pir Bux Jatoi are sentenced to suffer rigorous imprisonment for the period of 07 years and 06 months each and to, pay fine of Rs.35,000/- each and in default in payment of fine, they shall further undergo for the period of 06 months and 15 days' S.I each." 8. Appellants, Rahamuddin, Imdad Ali Kakhrani and Muhammad Bux Jatoi, being aggrieved by their above conviction and sentences, have preferred above criminal appeals, while applicant Sardar Khan Khoso has filed Criminal Revision Application No. 09/2018 seeking return of his vehicle. 9. First we will take up Criminal Revision Application No. 9/2018 which has been filed by applicant Sardar Khan, who was driver of the vehicle in which the above appellants were travelling at the time of their arrest by police along with alleged contraband items. While disposing of Special Case No.16 of 2017, the trial Court passed the following order in respect of the applicant Sardar Khan Khoso: "In the light of above discussion, I am of the view that the prosecution has failed to prove its case against accused Sardar and Shafi Muhammad beyond shadow of reasonable doubt, therefore, they are acquitted under section 265-H(1), Cr.P.C. by giving them benefit of doubt from the charge of this case. They are present in custody of District Prison Jacobabad. They are remanded back to District Prison Jacobabad with the direction to the Jail Superintendent to release them at once, if they are not required to be detained in any other custody case." 10. So far as the Mazda truck, being driven by the applicant Sardar Khan Khoso is concerned, the trial Court passed the following order for disposal of case property: "Order for disposal of property 20 K.G charas recovered from accused persons Rahamdin, Imdad Ali and Mohammad dux along with dopatas, towel, packets of Bonus and Express washing power be destroyed in accordance with the law, after expiry of appeal period, while the cash amount recovered from all accused persons not claimed by them be deposited in Government Treasury in proper head after expiry of appeal period, while the Mazda Truck TKR-284 recovered from accused Sardar and Shafi Mohammad be restored to them in accordance with law, after expiry of appeal period." 11. Before proceeding any further, we would like to mention that in some cases there are more than one issue and in such case the trial Court should take up each issue separately and decided it in an unambiguous and clear manner so that no ambiguity is attached to the order. In the present case, the vehicle was taken into custody when it was being driven by applicant Sardar Khan Khoso while Shafi Muhammad was cleaner with him. Even a person of ordinary prudence knows that each vehicle, when it is not in the direct control of its real owner, is under the command of the driver. Even a police constable when, when he stops a vehicle, asks the driver for its documents and if he is unable to produce the same he books the driver and not the cleaner of the vehicle. However, while passing the above order for disposal of the case property, ambiguity was created by stating "while the Mazda Truck TKR-284 recovered from accursed Sardar and Shafi Mohammad be restored to them" which is not the correct position as the said vehicle was recovered from applicant Sardar Khan Khoso. The trial court ought to have ordered for return of the vehicle to the driver Sardar Khan Khoso, in case the real owner of the vehicle did not come forward to claim the same, as it cannot be handed over to the cleaner. 12. After his acquittal and the above order for disposal of the vehicle, the applicant, Sardar Khan, filed an application before the trial Court for return of the said vehicle, however, the same was dismissed in the following words: "4. Since, in the above CNS case, appeal has been filed by the accused persons bearing Criminal Jail Appeal No. D-43 of 2018, which is still pending before the Hon'ble High Court of Sindh, Circuit Court Larkana, therefore, at this stage, this application cannot be allowed.... Accordingly, this application is rejected." 13. While passing order for disposal of case property, the trial Court ordered that the Mazda truck TKR-284 recovered from accused Sardar and Shafi Muhammad be restored to them in accordance with law, after expiry of appeal period. The judgment in the instant case was delivered on 28.5.2018 whereby applicant Sardar Khan Khoso, driver of the vehicle, and Shafi Muhammad, cleaner, were acquitted while accused Rahamdin, Imdad Ali and Muhammad Bux were convicted and sentence as above. Accordingly, the above named convicted persons preferred appeals against their conviction and sentences, as noted above, however, driver Sardar Khan Khoso and cleaner Shafi Muhammad were acquitted, meaning thereby that neither they nor the said vehicle was in any manner involved in drug trafficking, and since no appeal was filed by the State against the acquittal of Sardar Khan and Shafi Muhammad, therefore, their acquittal, on the expiry of period of limitation, attained finality and. thus, they, along with the said vehicle, were exonerated from the said crime. The fate of the appeals filed by the said convicted accused, whether the same are allowed or dismissed, would not affect the case of the acquitted accused in any manner nor the order for disposal of the vehicle was under challenge before any Court. Therefore, there was no occasion for the trial Court to turn down the application of Sardar Khan Khoso. 14. Accordingly, we allowed Criminal Revision No. 09 of 2018 by our short order dated 12.03.2019 in the following terms: "In view of above, Criminal Revision Application No. D-09 of 2018 is allowed and the impugned order dated 13.9.2018 passed by the trial Court in Criminal Misc. Application No.679 of 2018 re-Sardar Khan Khoso v. The State, is also hereby set aside. As reported, the vehicle in question is standing at Police Station Saddar, Jacobabad, therefore, SHO concerned is directed to release the vehicle to the applicant/owner, namely, Sardar Khan Khoso on proper verification, identification and after obtaining the receipt of delivery from him." 15. Above are the reasons for our short order dated 12.03.2019 in respect of Criminal Revision Application No.D-09 of 2018. 16. Now, we will take up the above two criminal appeals filed by appellants Rahamuddin, Imdad Ali and Muhammad Bux Jatoi. 17. Case of the prosecution, in a nutshell, is that on 16.03.2017, complainant Inspector Ayaz Ahmed was patrolling in the area when they received spy information that three persons are smuggling contraband items from Quetta to Jacobabad. He intercepted such vehicle and arrested five persons on charge of smuggling 20 Kgs charas and such FIR was lodged by him at Police Station Saddar and the arrested accused persons and the case property was handed over by him to SIO Shabeer Ahmed Sahito, who was IO of the case, who after completion of investigation presented challan before the trial Court. 18. In order to prove the guilt of the accused, the, prosecution examined the complainant as PW-1 (Exh.04). He deposed as under: "I along with ASI Ashiq Ali, ASI Muneer Ahmad, PC Nazeer Ahmad, PC Liaquat Ali, PC Babal Khan and driver PC Abdul Wahab left PS for patrolling in the area in official vehicle and after patrolling at various places at about 09.30 a.m., we reached at Mouladad Phatak, where I received an spy-information that in a blue colour Cargo truck bearing registration TKR-284, 03 narcotic sellers were bringing narcotics from Quetta to Jacobabad. On receiving the information, I proceeded to the bypass at Shambay Shah Point leading to Shikarpur. We took the positions at the Police post. At about 1000 am, I noticed a Cargo truck TKR-284 coming from Quetta side. We signaled the truck driver to stop. I noticed that there were 04 persons sitting with the driver on the front seat. I opened the door of the driver and noticed that the man sitting with the driver had black bag. I enquired the man about his name, who disclosed his name as Rahamdin Pathan and I asked him to hand over the bag to me, which I took in my custody. The second person to the driver disclosed his name as Imdad Kharani. He had black colour shopping bag in his hands. I asked him to hand over shopping bag to me. I took the bag in my custody from Imdad and next person disclosed his name as Habibullah Jatoi. He was holding a pile of a cloth in his lap and I asked him to hand over the pile to me, which I took in my custody and the fifth person sitting at the passenger gate of truck disclosed his name as Shafi Muhammad Golo and said that he was cleaner qf the vehicle, while driver disclosed his name as Sardar Khoso. I asked all the five persons to alight from the vehicle. I opened the bag recovered from accused Rahamdin, where from 20 dopatta of different colours were recovered, besides a pink colour towel, when I removed dopattas and towel from the bag, noticed that slabs of charas were lying in the bag. I took out the charas and counted them, which were 20 slabs of the charas. I conducted personal search of accused Rahamdin and recovered a currency note of Rs.1000/- from the right side pocket of his shirt. I opened the shopping bag of accused Imdad, where from 43 plastie packets of Bonus and Express washing powder were recovered and I noticed that there were slabs of charas under the washing powder which I took out and found that there were 10 slabs of the charas. I opened the pile of the cloth recovered from accused Habibullah, where from 19 dopattas, an old pair of the male cloth, towel were recovered and noticed that there were 10 slabs of the charas in the bottom of the pile. Again says that the pile was recovered from Muhammad Bux son of Habibullah. I conducted personal search of accused Imdad and recovered 08 currency notes of Rs. 100/- from the left side pocket of his shirt, while from personal search of accused Muhammad Bux, 07 currency notes of Rs.100/- were recovered from the right side pocket of his shirt. Nothing was recovered from the possession of driver Sardar and cleaner Shafi Muhammad. Driver Sardar and cleaner Shafi Muhammad on interrogation disclosed that they used to bring the accused persons from Quetta/Shikarpur, Jacobabad on payment of fare of Rs.30,000/-. PC Liaquat brought the electronic scale from our vehicle to weigh the charas. I signaled many vehicles and asked the passengers to act as mashirs of the proceedings but they apologized. I nominated ASI Ashiq Ali and ASI Muneer as mashirs of the proceedings, weighed the charas recovered from the accused…

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