Full Judgment Text & Judicial Ruling

2023 P Cr. L J 1007 [Sindh (Larkana Bench)] Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ ROSHAN ALI and another---Appellants Versus The STATE---Respondent Criminal Appeals Nos. D-1, D-4 and Criminal Acquittal Appeal No. D-17 of 2019, decided on 26th January, 2021. (a) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c)--- Possession of narcotics--- Appreciation of evidence---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Record showed that the FIR was registered with promptitude giving no time for concoction and the statements of the Police witnesses under S. 161, Cr.P.C. were recorded promptly which were not significantly improved upon by any witness at the time of evidence---Arrest and recovery was made on the spot and the accused were caught red handed with the narcotic by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---No major contradictions in the evidence of the witnesses was found---Most significantly the narcotic was recovered from the car which was being driven by accused, where the narcotics were on the back seat between two co-accused ladies and as such there was no doubt that all the accused had actual knowledge of the narcotic which was being transported---Car was recovered along with the narcotic---Facts of the case showed that it would be extremely difficult to foist such a large amount of charas---Circumstances established that the prosecution had proved its case beyond reasonable doubt---Appeals against conviction were dismissed, in circumstances---Co-accused/respondent was acquitted on the basis of her young age and immaturity having no choice but to get in the car and her lack of blood relationship with the other accused---Such findings were found to be utterly perverse, arbitrary and completely contrary to the evidence on record---Acquitted accused was 20 years of age at the time of the offence therefore, was certainly old and mature enough to be responsible for her actions---No evidence was on record to show that acquitted accused was forced to accompany the accused in the car and that simply because she was not a blood relative to the other accused did not exonerate her---By the same token/reasoning accused who was not related by blood to co-accused persons should also have been acquitted by the Trial Court---Acquitted accused was a neighbour of the accused and thus had a nexus and a reason to be in the car with them---Appeal against the acquittal of accused was allowed, in circumstance.

Ameer Hamza alias Hamza v. The State 2015 PCr.LJ 1402; Ikramullah and others v. The State 2015 SCMR 1002; Abdul Ghani and others v. The State 2019 SCMR 608; Zahoor Ahmad and another v. The State 1997 SCMR 543; Riaz Mian v. The State 2014 SCMR 1165; Mula Jan v. The State 2014 SCMR 862; Noorul Haq v. The State 1992 SCMR 1451; Hussain Shah and others v. The State PLD 2020 SC 132; Tariq Parvez v. The State 1995 SCMR 1345; Rashid Ahmad v. The State 2001 SCMR 41; WAPDA v. Khanmullah and others 2000 SCMR 879; Abdul Khaliq Shah v. The State SBLR 2019 Sindh 197; Shahzada v. The State 2010 SCMR 841 and Shazia Bibi v. State 2020 SCMR 460 ref. Mustaq Ahmed v. The State 2020 SCMR 474; Nadir Khan v. State 1998 SCMR 1899; Hussain Shah and others v. The State PLD 2020 SC 132; Mehboob-ur-Rehman v. State 2010 MLD 481 and The State v. Abdali Shah 2009 SCMR 291 rel. (b) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c)---Possession of narcotics---Appreciation of evidence---Police Officials as witnesses---Reliance---Scope---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Evidence of a police witness was as reliable as any other witness provided that no enmity existed between him and the accused---General unsubstantiated enmity had been alleged against the police, which was not worthy of any reliance---Despite lengthy cross-examination none of the witnesses's evidence was shaken---Evidence of the police witnesses reliable, being trustworthy and confidence inspiring was believable, which was corroborative in all material respects---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused persons---Appeals against conviction were dismissed, in circumstances. (c) Criminal trial--- ----Witness---Minor contradictions in statements of witnesses---Scope---Minor contradictions which do not affect the materiality of the evidence can be ignored. Zakir Khan v. State 1995 SCMR 1793 rel. (d) Criminal trial--- ----Investigating Officer---Complainant being Investigating Officer---Scope---No restriction on the complainant to be the Investigating Officer provided that no animosity or enmity is alleged against him by the accused Zafar v. State 2008 SCMR 1254 rel. (e) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c)---Possession of narcotics---Appreciation of evidence---Delay in sending samples for chemical analysis---Scope---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Record showed that there was no delay in sending the samples for report of chemical analysis which turned out to be positive with all required protocols being followed---Recovered narcotic was kept in safe custody from the time of its recovery to the time when samples were taken for chemical analysis---No suggestion of tampering with the same had even been made---Narcotic was sealed on the spot, remained sealed in the malkhana for which a malkhana entry had been produced before being transported to the chemical examiner by Head Constable under seal and who was examined as to safe custody and the narcotic reached the Chemical Examiner in a sealed condition as per the chemical report---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused persons---Appeals against conviction were dismissed, in circumstances. (f) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Non-association of private witnesses---Scope---Prosecution case was that seventy five kilograms of charas was recovered from the vehicle of the accused persons---Although no independent mashir was associated with the arrest and recovery of the accused, however it had come in evidence that no private person was available to become an independent mashir at the time of arrest and recovery---Even otherwise S. 103, Cr.P.C was excluded for offences falling under the Control of Narcotic Substances Act, 1997 by virtue of S. 25 of that Act---Circumstances established that the prosecution had proved its case beyond reasonable doubt against the accused persons---Appeals against conviction were dismissed, in circumstances. Muhammad Hanif v. The State 2003 SCMR 1237 rel. Habibullah G. Ghouri for Appellants (in Criminal Appeal No. D-1 of 2019). Athar Abbas Solangi for Appellant (in Criminal Appeal No. D-4 of 2019). Ali Anwar Kandhro, Additional P.G. for the State. Habibullah G. Ghouri for Respondent (in Criminal Acquittal Appeal No. 17 of 2019). Date of hearing: 19th January, 2021. JUDGMENT MOHAMMAD KARIM KHAN AGHA, J.---By this common judgment, we intend to dispose of these three connected matters out of which appellants Roshan Ali, Mst. Bakhtawar and Oshaq Phulpoto by filing Criminal Appeals Nos. D-01 and 04 of 2019 have assailed the impugned judgment dated 21.12.2018 passed by learned Sessions Judge, Shikarpur in Sessions Case No.11 of 2018 re: State v.Oshaq and others arising out of Crime No.26 of 2017 of Police Station Sultan Kot registered for offence under sections 9(c) Control of Narcotic Substances Act, 1997 (CNSA), whereby the appellants have been convicted and sentenced to suffer R.I for life and pay fine of Rs.500,000/=, in case of default in payment thereof, they shall suffer further S.I for six months more, however, benefit of section 382-B, Cr.P.C. was extended to the appellants, while the State through Additional P.G by filing Criminal Acquittal Appeal No.D-17 of 2019 has assailed same impugned judgment to the extent of acquittal of respondent/accused Mst. Kainat. 2. The prosecution case as unfolded in the FIR is that: "Complaint on behalf of the State is that today I along with police staff each and every namely PC/2980 Sadam Hussain PC/2469 Farooq Ahmed PC/921 Khuda Bux PC/180 Zakir Hussain duly uniformed and armed with service weapons departed on government vehicle No.SPD-027 driven by driver PC Haque Nawaz from the P.S vide Roznamcha entry No.12-1720/23-8-2017 for the snap checking on the directions of Senior officers. We reached at Soomra Wahi via Jacobabad Shikarpur one way main road; where we started snap checking of small and large vehicles. During checking, time 1810 hours, we checked a Mehran Car of white colour; two men were sitting on front seats of the car while two ladies, with open faces, were sitting on the rear seats of the car. We found two white Patchkas/plastic sacks lying on the rear seats in between the two ladies. Meanwhile, we opened and checked the said Patchkas and found packets packed in shopping bags thereafter we opened and checked the packets and found charas. Due to the absence of private witnesses/Mashirs on the spot PC Sadam Hussain and PC Farooque Ahmed were appointed as Mashirs/witnesses and then the charas was taken under the custody. Apprehending the sitting men and ladies in car, we asked them their names and addresses. That the men sitting on the front seats told their names and addresses: 1) driver, Oshaque Ali son of Rustom Ali by caste Phulpoto 2) Roshan Ali son of Muhammad Saffar by caste Kalal. Ladies sitting on the rear seats told their names and address: 3) Bakhtawar Khatoon wife of Roshan Ali by caste Kalal 4) Kainat daughter of Abdul Fatah b/c Tunio resident of Nazar Mohalla Larkana. Subsequently, we counted the charas that there were 75 shopping bags/Thalis of charas packed in slabs; the total weight of entire charas was 75 kilogram. Thereafter we asked them regarding the charas; in reply all of them told that charas is of one Muhammad Arif son of Abdul Qadir Khan Brohi resident of Quetta Balochistan whose mobile phone number is 0333-9825557; he gave the said charas for selling in Larkana. The apprehended persons were, therefore, arrested for committing offence punishable under section 9(c) of CNSA. After that they were personally frisked that one currency note of 1000/cash amount and one original NIC with name Oshaque Ali were secured from driver Oshaque Ali, one currency note of 1000/-rupees was secured from Roshan Ali Kalal and no other thing except necessary clothing were with him, from lady namely Kainat Tunio we secured one Nokia mobile phone of black colour, from lady Mst. Bakhtawar Kalal nothing was secured. Thereafter we searched the car; nothing else was recovered from the car. All the recovered charas was sealed and stamped for chemical examination. The recovered cash amount and NIC of Oshaque Ali were sealed and stamped and such mashirnama was prepared in presence of mashirs. The arrested accused along with the case property were brought to the P.S. As the arrested accused men and women have committed offence punishable under section 9(c), CNSA by carrying charas with them in Mehran Car No.AUT-526 therefore, an FIR is being lodged against them on behalf of the State." 3. On conclusion of usual investigation, accused were sent up to stand trial. Accused Mst. Kainat appeared and claimed to be juvenile on the basis of School Leaving Certificate as such her case was bifurcated from the rest of the accused vide order dated 15.3.2018. Formal charge was framed against the rest of the accused to which they plead not guilty and claimed trial. Thereafter in the wake of report furnished by medical board, accused Mst. Kainat was found adult being 20 years therefore, her case was amalgamated with case of rest of accused and amended charge was framed against all the four accused to which they pleaded not guilty and claimed trial. 4. At trial the prosecution examined 3 PW's and exhibited numerous documents and other items in order to prove its case. The statements of all the accused were recorded under section 342, Cr.P.C. in which they claimed that they had been falsely implicated in the case. None of the accused gave evidence under oath or called any DW in support of their defence case. 5. On conclusion of the trial, the learned trial court after hearing learned counsel for the parties and appraisal of evidence brought on record, convicted and sentenced the appellants Oshaque, Roshan Ali and Mst. Bakhtawar vide the impugned judgment dated 21.12.2018 as mentioned above, while accused Mst. Kainat was acquitted, giving rise to filing of these appeals against conviction and acquittal by the appellants and the State respectively. 6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 21.12.2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. Turning firstly to the appeal against convictions. 7. Learned counsel for the appellants have contended that the car does not belong to the appellants, that they have been falsely implicated by the police on account of enmity who had let the real culprit off; that the evidence of the IO could not be relied upon as he was also the complainant and therefore would not carry out a fair investigation; that no independent mashir was associated with the arrest and alleged recovery; that no recovery was made from any of the appellants as they were not in the vehicle; that even otherwise the police had robbed appellant Mst. Bakhtawar and had foisted the narcotics on the appellants; that even if the appellants were in the vehicle (which was denied) they had no conscious knowledge of the narcotics; that the police story was not believable as the narcotics would have been hidden in a secret cavity of the car and not hidden between the two female accused; that there were major contradictions in the evidence of the PW's which rendered it unreliable; that co-accused Mst. Kainat had been acquitted on the same set of evidence and as such the appellants were entitled to the same treatment and that for any of the above reasons based on the benefit of the doubt the appellants be acquitted of the charge. In support of their contentions the appellants placed reliance on Ameer Hamza alias Hamza v. The State (2015 PCr.LJ 1402), Ikramullah and others v. The State (2015 SCMR 1002), Abdul Ghani and others v. The State (2019 SCMR 608), Zahoor Ahmad and another v. The State (1997 SCMR 543), Riaz Mian v. The State (2014 SCMR 1165), Mula Jan v. The State (2014 SCMR 862), Noorul Haq v. The State (1992 SCMR 1451), Hussain Shah and others v. The State (PLD 2020 Supreme Court 132), Tariq Parvez v. The State (1995 SCMR 1345), Rashid Ahmad v. The State (2001 SCMR 41), WAPDA v. Khanmullah and others (2000 SCMR 879), Abdul Khaliq Shah v. The State (SBLR 2019 Sindh 197) and Shahzada v. The State (2010 SCMR 841). 8. On the other hand learned Addl. Prosecutor General has fully supported the impugned judgment and contended that the PW's in their evidence are all reliable, trustworthy and confidence inspiring and fully implicate the appellants in the offence; that the narcotics were recovered from the car once it was stopped at a check point; that the appellants were arrested on the spot; that the narcotics were weighed and sealed on the spot; that there are no major contradictions in the evidence of the PW's to make it unreliable; that the chemical report was positive and as such the prosecution has proved its case beyond a reasonable doubt against the appellants and their appeals should be dismissed and the conviction and sentences may be maintained. In support of his contentions he placed reliance on Shazia Bibi v. State (2020 SCMR 460) and Mustaq Ahmed v. The State (2020 SCMR 474) 9. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the learned counsel for the appellants, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar. 10. At the outset we find that the authorities cited by the appellants are of little, if any, assistance to them based on the particular facts and circumstances of this case. 11. After our reassessment of the evidence on record we find that the prosecution has proved beyond a reasonable doubt the charges against the appellants for which they have been convicted and sentenced and hereby uphold their convictions and sentences for the following reasons; (a) The FIR was registered with promptitude giving no time for concoction and the section 161, Cr.P.C. statements of the police PW's were recorded promptly which were not significantly improved upon by any PW at the time of giving evidence. (b) That the arrest and recovery was made on the spot and the appellants were caught red handed with the narcotics by the police whose evidence fully corroborates each other in all material respects as well as the prosecution case. It is well settled by now that the evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused and in this case only a general unsubstantiated enmity has been alleged against the police which is not worthy of any reliance and as such we find that the police PW's had no reason to implicate the appellants in a false case. Despite lengthy cross-examination none of the PW's evidence was shaken and we find the evidence of the police PW's to be reliable, trust worthy and confidence inspiring and thus we believe the police evidence which is corroborative in all material respects. Reliance in this respect is placed on the case Mushtaq Ahmed (supra) where it was held in material part as under at para 3; "Prosecution case is hinged upon the statements of Aamir Masood, TSI (PW-2) and Abid Hussain, 336-C (PW-3); being officials of the Republic, they do not seem to have an axe to grind against the petitioner, intercepted at a public place during routine search. Contraband, considerable in quantity, cannot be possibly foisted to fabricate a fake charge, that too, without any apparent reason; while furnishing evidence, both the witnesses remained throughout consistent and confidence inspiring and as such can be relied upon without a demur." (c) That there are no major contradictions in the evidence of the PW's and it is well settled by now that minor contradictions which do not effect the materiality of the evidence can be ignored. In this respect reliance is placed on Zakir Khan v. State (1995 SCMR 1793). (d) It is settled by now that there is no restriction on the complainant being the IO provided that no animosity or enmity is alleged against him by the accused and I none has been alleged specifically against the IO in this case. In this respect reliance is placed on Zafar v. State (2008 SCMR 1254). (e) Most significantly the narcotics were recovered from the car which was being driven by appellant Oshaque which was a small Mehran car where the narcotics were on the back seat between appellant Mst. Bakhtawar and respondent Mst. Kainat and as such there is no doubt that all the appellants had actual knowledge of the narcotics which were being transported. The car was being driven by appellant Oshaque and appellant Roshan Ali was with him in the front passenger seat and quite naturally his wife Mst Bakhtawar was sitting in the back seat with the narcotics which were between her and co -accused/ respondent Mst. Kainat. Appellant Roshan Ali and his wife Mst. Bakhtawar in their section 342, Cr.P.C. statements even admit that they were travelling in the car when the complainant stopped them. The car was recovered along with the narcotics. In this respect in the similar case of Nadir Khan v. State (1998 SCMR 1899) it was held as under, "We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licenses also. As being person incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependents on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it". (f) In this regard reliance is also placed on Hussain Shah and others v. The State (PLD 2020 SC 132) which is similar to the facts and circumstances of this case where it is simply not believable that all the appellants were not aware of the narcotics in the back seat of the car. (g) Furthermore, under section 29, CNSA once the recovery has been proven as in this case the onus shifts to the accused to show his innocence in that at least he had no knowledge of the narcotics. The appellants have not been able to do so in this case. In the case of Mehboob-ur-Rehman v. State (2010 MLD 481) it was held as under in this respect at P485 Para 14. "Under the provisions of section 29 of the C.N.S. Act once the recovery of contrabands was made from a private car which was by then in control of the two appellants, the burden to explain the possession whether actual or constructive was on the appellants to discharge but neither they have led any evidence in defence nor have appeared in disproof of the prosecution evidence under section 340(2), Cr.P.C. thus the charge laid upon them has remained unrebutted". (h) That it would be extremely difficult to foist such a large amount of charas being in total 75 KG's as mentioned in Mustaq Ahmed's case (Supra) and The State v. Abdali Shah (2009 SCMR 291). (i) That there was no delay in sending the chemical report for analysis which turned out to be positive with all required protocols being followed. (j) That the recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis and no suggestion of tampering with the same has even been made. The narcotics were sealed on the spot, remained sealed in the malkhana for which a malkhana entry has been produced before being transported to the chemical examiner by PW 3 HC Toufiq Ahmed under seal and who was examined as to safe custody and the narcotics reached the chemical examiner in a sealed condition as per the chemical report. In this respect reliance is placed on the recent Supreme Court case of Zahid and Riaz Ali v. State dated 03-03-2020 (unreported) in Jail Appeal No.172 of 2018. Although this case concerned rape since it concerned the safe custody of certain swabs being sent to the chemical examiner we consider its findings to be equally applicable to the safe custody of narcotics being sent to the chemical examiner which held as under at para 5 in material part; "The chemical examiner's report produced by the lady doctor states that the seals of specimens sent for chemical examination were received intact and it was the chemical examiner who had broken open the seals, therefore, the contention of the petitioners' learned counsel regarding the safe transmission of the specimens is discounted both by this fact as well as by the fact that no question was put regarding tampering of the said seals." (k) We are also of the view that based on the evidence on record the safe custody and its unbroken chain of custody from time of recovery to placement in the malkhana to it being delivered to the chemical laboratory for analysis has met the requirements of the recent Supreme Court case in Criminal Appeal No.184 of 2020 Mst. Sakina Ramzan v. State (unreported) dated 06.01.2021. (l) That all relevant police entries were duly exhibited. (m) That although no independent mashir was associated with the arrest and recovery of the appellants it has come in evidence that no private person was available to become an independent mashir at the time of arrest and recovery. Even otherwise section 103, Cr.P.C. is excluded for offences falling under the Control of Narcotic Substances Act, 1997 by virtue of section 25 of that Act. In this respect reliance is placed on the case of Muhammad Hanif v. The State (2003 SCMR 1237). (n) That in dealing with narcotics cases the courts are supposed to adopt a dynamic approach and not acquit the accused on technicalities. In this respect reliance is placed on Ghualm Qadir v. The State (PLD 2006 SC 61) which held…

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