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Petitioner: BUDHO and 2 others VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Shamsuddin Abbasi Title: BUDHO and 2 others vs The STATE Case No.: Criminal Appeals Nos, D-79, D-81 and Criminal Jail Appeal No, D-84 of 2017 Date of Judgment:2018-04-05 Reported As: 2018 P Cr. L J 1393 Result: Appeals dismissed
JUDGMENT
JUDGMENT SHAMSUDDIN ABBASI, J--- This judgment will dispose of Cr. Appeals No,D-79 and 81 of 2017, and Criminal Jail Appeal No,D-84 of 2017, as they arise out of common judgment passed by learned Sessions/Special Judge CNSA, Mirpurkhas in Special case No,29/2016 (Re: State v. Budho and others) arising out of Crime No,6/2016, under section 9(c), Control of Narcotic Substances Act, 1997 of Police Station DIO Excise Mirpurkhas, whereby appellant Budho son of Abdul Rahim Unar, Ameer Jan son of Sanaullah Achakzai and Rasool Bux son of Muhammad Usman Mallah were convicted for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to imprisonment for life and to pay fine of Rs,2,00,000/- each and in case of default in payment of fine appellants were ordered to suffer simple imprisonment for six months. Appellants were extended benefit of section 382-B, Cr.P.C. 2. The brief facts of the prosecution case are that on 11.06.2016 Nand Lal Excise Inspector left Police Station vide roznamcha entry No,137 along with his subordinate staff E.Cs Sikander Ali, Muhammad Yousuf, Muhammad Ameen, Muhammad Zaffar and Excise Driver Javed Iqbal in official vehicle bearing registration No,GS-8225 in the area for patrolling to prevent narcotic offences. During patrolling when they reached near Iqbal patrol pump, Inspector Nand Lal received spy information that white coloured corolla car bearing registration No,AFS-946 would appear from Hyderabad side along with three persons who were transporting the narcotic substance. On receiving such information they reached at Mirpurkhas bypass near choona factory and started checking of the vehicles. During checking said car appeared. Excise officials had information, they gave signal to stop it. On that, a person who was sitting on driving seat tried to drove away but they tactfully got stopped the vehicle and found that one person was sitting on driving seat whereas two persons
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were sitting on rear seat of car. They alighted the persons from the car and inquired their names. The person who was sitting on driving seat disclosed his name as Budho son of Abdul Raheem by caste Unar resident of Peengharo, Taluka Tando Bago, District Badin, whereas other two persons sitting on the rear seat of the car disclosed their names as Ameer Jan son of Sanaullah by caste Achakzai resident of Street Pir Ali Zai, Disfrict Qilla Abdullah and Rasool Bux son of Muhammad Usman by caste Mallah resident of Naunabad Paro, Tando Bago, District Badin. Due to non- availability of private mashirs, Inspector Nand Lal made ECs Sikandar Ali and Muhammad Yousuf as mashirs and conducted personal search of the accused. From personal search of Budho one Q- Mobile and one currency note of Rs,500/- and one currency note of Rs,100/- total Rs,600/- were recovered, from personal search of Ameer Jan, one Q-Mobile and one currency note of Rs,1000/-, one currency note of Rs,500/- and one currency note of Rs,100/- total Rs,1600/- were recovered and from personal search of Rasool Bux two currency notes of Rs,1000/- and one currency note of Rs,100/- total Rs,2100/- were recovered from his pocket. Excise Inspector searched the vehicle and found one white coloured plastic sack in a diggy and it contained 50 packets, each packet contained two slabs of charas. They weighed each packet of charas and found it of one kilogram. They weighed total charas and found 50 kilograms charas. Inspector Nand Lal sealed the recovered charas in same sack at the spot and arrested the accused and prepared mashirnama of arrest and recovery of charas in presence of mashirs and sealed at spot. Thereafter, Inspector Nand Lal brought the accused and case property to Excise Police Station where, he had lodged an FIR against accused under section 9(c) of Control of Narcotic Substances Act, 1997 on behalf of the State. 3. After registration of FIR Inspector Nand Lal conducted investigation of the case. 1.0 recorded statements of witnesses under section 161, Cr.P.C. Inspector Nand Lal deposited charas in the office of Chemical Examiner for analysis and report. After receiving report of Chemical Examiner and usual investigation he submitted chalan of the case before learned trial court under above referred sections. 4. Learned trial court framed charge against accused at Ex.4, the accused did not plead guilty and claimed for trial. 5. In order to prove its case, the prosecution had examined Inspector Nand Lal at Ex.6, who produced roznamcha entry No,137 of departure from Excise Police Station at Ex.6/A, mashirnama of recovery and arrest at Ex.6/B, arrival entry vide roznamcha entry No,138 at Ex.6/C, FIR at Ex.6/D, report of Chemical Examiner at Ex.6/E. Prosecution had examined P.W EC Sikandar Ali as mashir of arrest and recovery at Ex.7. Thereafter, prosecution had closed its side at Ex.8. 6. Learned trial court recorded statements of accused under section 342, Cr.P.C. wherein they denied the case of prosecution and claimed their innocence. Accused Budho and Rasool Bux did not examine themselves on oath, whereas, accused Ameer Jan examined himself on oath. Accused Ameer Jan and Rasool Bux produced their witnesses in their defence. All accused produced documents in their defence. 7. After recording the statements of accused and hearing learned counsel for parties, the learned trial court passed the judgment dated 13th July, 2017, whereby the appellants were convicted and sentenced rigorous imprisonment for life and to pay fine of Rs,2,00,000/- each and in case of failure for making payment of fine, each one of them would undergo simple imprisonment for six months. Benefit of section 382.-B, Cr.P.C. was extended to them. 8. Being aggrieved and dissatisfied upon the judgment passed by the learned trial court, the appellants have preferred to file these criminal appeals. 9. Learned Counsel for appellants Budho and Ameer Jan contended that the appellant Budho is a victim of political rivalry with present regime as he belongs to Dr. Zulfiqar Ali Mirza group in Badin and his wife was elected as a Member of District Council Badin, who had political differences with
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PPP Government and this case is result of political enmity. He further contended that as per section 36 of Control of Narcotic Substances Act, 1997 the report of Chemical Examiner should have been signed by two authorized officers, whereas, in this case only single officer had signed the report which is against the rules. He further contended that car was not produced by the Excise officials at the time of recording of evidence before trial court. He further contended that the owner of the alleged car was not joined as accused by Investigating Officer. He has also contended that mashirs were subordinate staff to complainant. It is submitted that complainant had received prior information about arrival of accused persons in a car but he failed to associate any independent person to witness the alleged recovery proceedings. Lastly, prayed for acquittal of the appellants of the charge. In support of contentions reliance is placed upon the cases of Ameer Zeb v. The State (PLD 2012 Supreme Court 380), (2) Ikramullah and others v. The State (2015 SCM R 1002), (3) Muhammad Hashim and another's case (2017 PCr.LJ 409), (4) Mohsin v. The State (2017 M LD 674), (5) Waqas All v. The State (2017 YLR 878), (6) Amjad All v. The State (2012 SCM R 577) and (7) Sardoor Khan v. The State (2013 YLR 1874). 10. Learned Counsel for appellant Rasool Bux has adopted the same arguments of learned counsel for appellants Budho and Ameer Jan. 11. On the other hand, learned Additional Prosecutor General Sindh contended that a huge quantity of charas has been recovered from the vehicle which could not be easily foisted upon anyone. He further contended that the complainant/Investigating Officer had deposited the whole charas in the office of Chemical Examiner promptly. Learned A.P.G argued that defense Counsel did not point out a single infirmity, contradiction and lacuna in the case and he supported the judgment passed by the learned trial court and prayed for dismissal of appeals. 12. It is a case of prosecution that huge quantity of charas has been recovered from the possession of appellants and appellants have taken defence plea and examined their defence witnesses, therefore, we have examined the evidence of both sides minutely. 13. In order to prove its case prosecution examined P.W No,1 Inspector Nand Lal of Police Station DIO Excise Mirpurkhas, who was complainant as well as Investigating Officer of the case and P.W No,2 EC Sikandar Ali was mashir of the case. We found that both the prosecution witnesses have fully supported the prosecution case. They were subjected to lengthy cross-examination but nothing came on record to discredit their evidence. Both the witnesses were unanimous on all material aspects of the case. We could not find out any discrepancy or material contradiction in their evidence, they have explained each and every point in the case. I.0 had sent entire charas to the Chemical Examiner for analysis without loss of time. Evidence of Excise Officials is fully supported by positive chemical report. We do not find out any justification in the plea that huge quantity of 50 KGs charas has been foisted upon accused. The evidence of prosecution witnesses is quite reliable, trustworthy and confidence inspiring. 14. We have perused the statements of accused recorded under section 342, Cr.P.C., statement on oath of accused Ameer Jan and D.Ws examined by the accused in their defense. The case of appellants has been put on juxtaposition and court has to see both sides, therefore, we have examined their evidence. Learned trial court had recorded statement of accused Budho under section 342, Cr.P.C. at Ex.9. The accused 'denied the allegations and replied to the question that what else you want to say? he replied as under:- "Sir, I have falsely been implicated in this case at the instance of Ali Asghar Halepoto and Muhammad Halepoto who are affiliated with PPPP while my wife Mst. Ajeemat was also elected as member of District Council Badin and we are affiliated with PPPW Mirza group. We were pressurized by the above said persons to give vote for their candidate for the seat of Chairman District Council Badin, to which we refused and then I have been falsely implicated in this case by the excise police by making foistation of charas at the instance of the said persons. My brothers Rasool Bux Unar.
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Rab Dino and cousin Ashraf were also implicated falsely in FIRs Cr. Nos,06 and 07 of 2016 of P.S Tando Bhago. My wife Mst. Ajeemat appeared before this court and sworn her affidavit in support of my bail application therein she has disclosed the same facts; her affidavit is available in the file of this court. On 08.06.2016 I and co-accused Rasool Bux were arrested from Kaloi, District. Tharparkar Mithi, in presence of Allah Jurio, Jafar, Ishaque and Abdullah. Then we were illegally kept confined for three days. In the meantime the excise police brought one unknown Pathan. Then we along with said Pathan have been involved in this case falsely. The case is false one. The excise police cooked up stereo type story as that of FIR Cr. No,01/2014 of P.S DIO Excise, Mirpurkhas. I produce certified true copy of said FIR at Ex.09-A. I produce attested copies of receipt dated 22.01.2016 issued by Returning Officer District Council, Badin, form of reserved seats for Women of District Council Badin showing the name of my wife Mst. Ajeemat and letter dated 06.06.2016 issued by Dr. Safdar Ali Abbasi President P.P.P Workers showing the name of my wife Mst. Ajeemat as member as Ex.09-B to Ex.09-D. Nothing was recovered from my possession. I was not arrested from the place of incident. Mashirs and P.Ws of this case are subordinates to the complainant and deliberately investigation of this case was not handed over to any other officer. I am innocent and pray for justice." He had produced certified copy of FIR No,01/2014 of Police Station Excise DIO Mirpurkhas at Ex.9/A, scrutiny receipt of nomination papers of his wife namely Mst. Ajeemat for reserve set of Women of District Badin. He has also produced result of reserve seat for Women showing the name of his wife at serial No,17 of the list. He has also produced Party ticket of his wife issued by President Pakistan Peoples Party Workers at Ex.9/B. It is a matter of record that accused Budho did not examine himself on oath and he had disclosed that he was arrested from hotel at Charya chowk at Kaloi town in presence of Allah Jurio, Jafer, Ishaque and Abdullah but he did not examine any D.W in his defence version. From the perusal of statement of accused Budho Unar, it appears that he had taken plea of political victimization at the hands of present regime as they were affiliated with PPP Workers Mirza group and his wife was elected as Member of District Council and due to this enmity he has been implicated in this false case but at the same time we have noticed that the appellant Budho had not produced his wife in defence before trial court who is elected Member of District Council, in order to prove/establish his defense plea. Mere contention of accused Budho that his wife had sworn an affidavit in support. of his bail application is not sufficient to discredit prosecution evidence. The further contention of accused Budho that his brother Rasool Bux Unar, Rab Dino and cousin Ashraf were also involved falsely in the case. Mere submission of copies of FIRs, scrutiny receipt and result of District Council is not sufficient to establish the defense plea taken by the appellant Budho Unar. Neither he had examined himself on oath nor led any defense evidence in his favour. We can say here that appellant Budho had failed to substantiate defense plea. 15. Accused Rasool Bux in his statement under section 342, Cr.P.C. at Ex.11 to the question that what else you want to say? he replied as under:- "Sir, I have car show room by name Bismillah Autos at Tando Bhago, District Badin. I had purchased car from Muhammad Farooque (car dealer) from Mirpurkhas. There arose dispute in between me and said Muhammad Farooque over payment of the said car. There is also dispute of my son in law Soomar with Abdul Jabbar Gharano Excise Officer Mirpurkhas over plot situated at Talhar. I have been involved in this case falsely by Abdul Jabbar Gharano at the instance of Muhammad Farooque and due to his dispute with my son in law over plot at Talhar. On 08.06.2016 I and co- accused Budho were arrested from Kaloi, District Tharparkar a Mithi, in presence of Allah Jurio, Jafar, Ishaque and Abdullah. Nothing was recovered from my possession. I produce attested copies of sale receipt and delivery letter No,66 dated 29.07.2013 and two visiting cards one big and other small at Ex.11-A to Ex.11-C. Nothing was recovered from my possession. I was not arrested from
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the place of incident. Mashirs and P. Ws of this case are subordinate to the complainant and deliberately investigation of this case was not handed over to any other officer. I am innocent and pray for justice." He has produced sale receipt and Delivery letter, cars of Bismillah Autos and Motor at Ex.11/A to 11/C but he did not examine himself on oath. As far the defence plea taken by appellant Rasool Bux is concerned that he had car showroom by name of Bismillah Autos and Motors at Tando Bago, District Badin and he had purchased car from Muhammad Farooque (car dealer from Mirpurkhas). The dispute arose in between him and said Muhammad Farooque over payment of the said car. He has further taken the plea that his son-in- law Soomar had dispute with one Abdul Jabbar Gharano, who is Excise Officer at Mirpurkhas and his son-in-law had dispute over plot situated at Talhar with the said Excise Officer Abdul Jabbar and due to above reasons, he has been involved falsely in this case. He has further taken plea that on 8.6.2016 he along with co-accused Budho were arrested from Kaloi, District Tharparkar @ Mithi, in presence of Allah Jurio, Jafar, Ishaque and Abdullah and he in support of his version has produced visiting cards in the name of Bismillah Autos and one delivery letter No,66 dated 29.07.2013. He has produced Muhammad Ishaque as DW in his defence who has deposed that he was sitting at hotel of Charya chow Kaloi Town and one person was in police uniform and two were in civil dress had picked up appellant Budho and Rasool Bux in their car and drove away. After 2/3 days he came to know about false implication of appellants in this case. The said defence witness was cross-examined and he admitted the fact that he knew accused Budho since last 5/8 years and accused had friendship with his nephew. In his cross examination this DW had deviated from his first version that at the time of abduction of appellants Budho and Rasool Bux he was available at hotel but on the same time in his cross examination he deposed that he was sitting at sweet shop and he had seen the accused when they were taken away. We are unable to rely on the statement of DW Muhammad Ishaque as he has taken somersault in his cross-examination in respect of presence at the hotel at the time of abduction of appellants Budho and Rasool Bux or his presence at sweet shop. 16. From the perusal of statement of accused Ameer Jan, accused Ameer Jan had also replied to a question in his statement under section 342, Cr.P.C. at Ex.10 what else you want to say? he replied as under:- "Sir, on 09.06.2016 I was abducted by some unknown culprits in plain clothes duly armed with weapons from near Maa Ji hospital, Hyderabad in presence of my relatives namely Fida and Essa Muhammad. Then on 10.06.2016 my brother Wali Jan moved an application to the SHO Police Station A-Section Latifabad Hyderabad for my recovery and for taking legal action against the unknown culprits. I produce certified true copy of receiving of such application at Ex.10-A. After my abduction I was kept confined illegally at Excise police station Mirpurkhas, there the complainant at the instance of Iqbal alias Mama demanded disputed money from me, to which I refused. Then on 11.06.2016 I have been involved in this case falsely by the Excise police Mirpurkhas by making foistation of charas at the instance of Iqbal alias Mama. Nothing was recovered from my possession. I am innocent and pray for justice. He has produced an application addressed to the SHO Police Station A-Section Latifabad regarding his arrest by his brother Wali Jan at Ex.,10/A. Accused Ameer Jan has examined himself on oath at Ex.16, wherein he has deposed that on 09.06.2016 at 9:00 a.m. he was abducted by three culprits in a white coloured corolla car having weapons near Maaji Hospital, Hyderabad. The culprits had fastened his eyes and kept him illegally in a room for two days and on next day he was handed over to Excise Police Mirpurkhas. He deposed that no contraband substance was recovered from him and his brother Wali Jan was having a business of Auto Rickshaws with Mama Iqbal. The unknown culprits were demanding that his brother Wali Jan would not demand money
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from Mama Iqbal otherwise he would learn a lesson to him. While replying to the question, accused Ameer Jan had denied all the suggestions made by learned SPP for the State. Accused Ameer Jan had examined his defence witness DW Wali Jan at Ex.17. This DW has deposed as follows:- "Accused Ameer Jan is my cousin, not brother. On 09.06.2016 when accused Ameer Jan and Fida Muhammad were standing by the side of Maaji hospital at Hyderabad there at about 9:00 p.m. time came some unknown culprits an apprehended Ameer Jan, put him in their car and drove it away. I then was related of the incident on phone by Fida Muhammad. Then I went at P.S A-Section Latifabad Hyderabad and moved an application for redressal of our grievance. I produce such application at Ex.17-A and say that; it is same, correct and bears my signature. On the next date I was told by Mohallah people that; Ameer Jan has been apprehended at Mirpurkhas by the Excise police as jt is reported in KTN news channel. I then went at District Jail Mirpurkhas and held a meeting with Ameer Jan. I then went to Excise office at Mirpurkhas and held a meeting with Inspector Nandlal and asked from him as to how he has apprehended accused Ameer Jan. He told me that; there is no issue with Ameer Jan and he would be released. I then engaged Counsel and then am in attendance before the Court. Accused Ameer Jan is innocent. He has got no concern with the car containing chars. CROSS TO MR. ZULFIQAR ALI LEGHARI I/C SPP FOR. THE STATE It is correct to say that; accused Ameer Jan was not apprehended by police from Hyderabad. It is incorrect to say that; accused Ameer Jan together with rest of the culprits was apprehended by Excise police at "Chung" factory Mirpurkhas when they were going through their car. Accused Ameer Jan at the time of his arrest was having Rs,1600/- and mobile phone. It is incorrect to say that on search from the car of accused Ameer Jan was secured by Excise police 50 packets of chars lying in a sack, those were weighing to be 50 K.Gs. Voluntarily says that; accused Ameer Jan is a Rickshaw driver. It is incorrect to say that; accused Ameer Jan with rest of the culprits is doing business of narcotics substance. Accused Ameer Jan is my near relative. It is incorrect to say that; I am before the court to save accused Ameer Jan being my near relative from the legal consequences." However, this DW had denied all the suggestions made by the learned SPP for the State and only he has admitted the fact that accused Ameer Jan is his near relative. He has produced copy of application submitted by him to SHO Police Station A-Section Latifabad, Hyderabad. But, here we have noticed that neither the name of receiving officer has been mentioned nor receiving date has been mentioned. Accused Ameer Jan has also examined DW Fida Muhammad at Ex.18, who has deposed that on 09.06.2016 he along with accused Amir Jan were going to Auto Bhan from Latifabad Hyderabad on a rickshaw along with his younger brother Essa Muhammad; when they reached adjacent to Maaji hospital at chowrangi a while colour corolla car intercepted their rickshaw. Three persons came out from the car who were in civil dress. One was having pistol and one was armed with Kalashnikov while third one was empty handed. They identified Ameer Jan and took him with them and thereafter, he informed to Wali Jan on cell phone. We have noticed that there is a material contradiction in between the statements of D.Ws as accused Ameer Jan deposed that he was standing by side of Maaji Hospital when unknown armed persons abducted him, whereas, D. W Fida Muhammad has stated that he, accused Ameer Jan and his younger brother Essa Muhammad were going on a rickshaw from Auto Bhan road to Latifabad and when they reached adjacent to Maaji Hospital at Chowrangi they were intercepted by the armed persons and abducted Ameer Jan. Neither accused Ameer Jan in his statement has deposed that at the time of abduction DW Fida Muhammad and his younger brother Essa Muhammad were accompanied with him nor he has stated that they were going on a rickshaw when accused persons intercepted them. 17. As far as defence taken by the appellant Ameer Jan is concerned, he has examined himself on
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oath and led evidence in his defense of DWs Wali Jan and Fida Muhammad. After scrutiny of depositions of appellant Ameer Jan and his two DWs, we can say here that appellant Ameer Jan had miserably failed to prove his defense plea through his DWs. Appellant Ameer Jan has stated in his statement on oath that he was standing by the side of Maaji Hospital when three culprits had abducted him in white colour corolla car. Neither appellant Ameer Jan had shown presence of DW Wali Jan nor shown the presence of DW Fida Muhammad and his brother Essa Muhammad at the place of his abduction at relevant time. On the contrary DW Fida Muhammad has deposed that he along with appellant Ameer Jan and his younger brother Essa Muhammad were 'going from Auto Bhan road to Latifabad Hyderabad when they reached Maaji Hospital one car intercepted them and abducted Ameer Jan and he further deposed that he had informed DW Wali Jan about abduction of appellant Ameer Jan. We found another material contradiction that Appellant Ameer Jan in his statement has shown Wali Muhammad as his brother, whereas, D.W Wali Jan in his deposition has stated that Appellant Ameer Jan is his cousin. Further, the motive had…
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