UMERTIAZ KHAN and another vs THE STATE

1. ' FARRUKH ZIA G. SHAIKH, J.--- Appellants have assailed the judgment dated 30-3-2006 passed by Mr. Rasheed Ahmed Soomro, Special Judge for Control of Narcotic Substances, Nausheroferoz, whereby he has convicted the appellants under section 9(c) of Control of Narcotic Substances Act, 1997, and sentenced them to suffer R.I. For ten years with fine of Rs,30,000 each, or in case of default in payment of fine, they were directed to suffer R.I. For one year more. The appellants have also been extended the benefit of section 382-B, Cr.P.C.

2. ' Succinctly, the facts of the prosecution case relevant for the disposal of the instant appeal are that as per F.I.R. Lodged by complainant Excise Inspector. Abdul Latif, on 6-10-2003 at 8-30 p.m. He along with Excise Inspector, Azizullah Nangraj and other subordinate staff left the Excise Police Station, Kandiaro for detection of excise crime vide Entry No,2. When they reached at National Highway near Syed Petrol Pump they saw a bus coming from the Sukkur side. The said bus was immediately stopped by the complainant party, 20 persons were found sitting including the bus driver and other employees. The complainant party found two persons sitting behind the bus driver and one ragzine bag lying in front of them. The complainant party suspected the persons to be criminals and enquired about contents of bag. Those persons were directed to come out of the bus with the bag, on that both persons took out pistols hidden in their Shalwars and tried to fire.

3. However, they were successfully apprehended along with the weapons. On interrogation they disclosed their names as Umertiaz Khan Pathan (appellant No,1) and Ahsanullah Khan Pathan (appellant No,2). Pistols were found to be unlicensed. After search of bag, six slabs of Charas, one magazine and 63 live bullets were recovered. 200 grams from each slab of Charas were separately taken as sample and were sealed separately while the remaining 4800 grams were sealed in a different bag. Mashirnama was prepared in presence of E.S. Shafi Muhammad Kalhora and E.D.

4. Khuda Bux Rajpar. On the basis of that fact F.I.R. Was registered.

5. ' After usual investigation, case was challaned by the police and one accused Imran was shown as absconder.

6. ' The charge against the appellants was framed on 6th April, 2005, on the ground that they were found in possession of 6 kilograms Charas in contravention of sections 6 and 8 of Control of Narcotic Substances Act, 1997, committing an offence under section 9(c) of Control of Narcotic Substances Act, 1997.

7. ' Prosecution examined Mashir Shafi Muhammad and complainant Excise Inspector Abdul Latif.

8. ' Prosecution witness No,1 Shafi Muhammad in his examination in-chief stated that at Syed Petrol Pump a bus bearing Registration No,JA-8069 coming from Sukkur was stopped in which 20 persons including driver and staff of the bus were present. The police party entered in the bus and found two persons sitting on the seat behind the driver seat and both were suspected by the police party. Police party saw one bag was lying near the feet of both passengers and on enquiry they owned the bag to be of them. Police party called both of them out of the bus but both of them took out pistols from their folds of Shalwars and they were successfully apprehended and on enquiry they disclosed their names to be Ahsanullah and Umertiaz and from their possession arms and Charas were found. The Charas was weighed on spot and each slab was of one kilogram and total weight of the Charas was six kilograms. 200 grams of each slab were separated and sealed separately for chemical examination and the remaining Charas was also sealed separately in a bag. He also stated that the accused persons themselves had admitted that the bag in question belonged to them.

9. ' P.W. Abdul Lateef who is also the complainant, in his examination-in-chief narrated that the suspect passenger were sitting behind the seat of driver and there was a ragzine bag lying in front on their feet. When passengers were asked to come down from the bus, they took out pistols, they were apprehended and were taken into custody.

10. ' Statements under section 342, Cr.P.C. Of both the appellants were recorded, in which they denied the allegations levelled against them and further stated that they are innocent and have been involved in this case falsely because of enmity with Excise Inspector Azizullah Nangraj and the property has been foisted upon them.

11. ' The learned counsel for the appellants placed reliance on the case of Nek Muhammad and another v. The State PLD 1995 SC 516.

12. The above mentioned authority of the Honourable Supreme Court of Pakistan is distinguishable from the case of the appellants inasmuch as, in the case in hand Charas was not concealed in any cavity of the bus but it was in a bag which was carried and owned by the appellants. Further the mere fact that when the complainant party tried to apprehend the appellants, they took pistols with an intention to fire at the complainant party.

13. ' It was further argued by the learned counsel for the appellants that no independent witnesses were mentioned in the Mashirnama and therefore, it is clear violation of section 103, Criminal Procedure Code, 1898.

14. ' At the first instance by virtue of section 25 of C.N.S.A. Section 103, Cr.P.C. Is not applicable in narcotic cases registered under C.N.S.A., 1997. Even otherwise it is observed by apex Court in many cases of narcotics that the law-enforcing agencies have to keep certain information secret till the last hours relating to the recovery and conducting raid at a particular place and if such precautionary measures are not adopted and secret information about concealing or running business of narcotics etc., are allowed to spread out, there would be a raid but without success as in the meanwhile the accused persons shall manage to shift the drugs to some other place. Further generally the residents of locality hesitate to become witness of recovery memo. Due to which the Investigating Officer is left with no option but to pick-up a witness from the police, therefore, its non-compliance cannot be considered a strong ground for holding that the trial of the accused is bad in the eye of law.

15. ' The learned counsel cited the case of Gul Rehman v. The State 2005 PCr.LJ 21.

16. The above referred judgment is also distinguished from the facts of the case in hand as in the present case 200 grams Charas from each slab was separated as sample and sealed separately while remaining 4800 grams Charas was sealed separately, therefore, there is no iota of doubt that the entire 6 slabs of the seized material was Charas.

17. ' It was further argued that there was a delay in sending the samples for chemical examination and the appellants were only apprehended because there was a personal enmity with the complainant.

18. The learned counsel has not been able to satisfy this Court that there was a delay in sending the sample to the Chemical Examiner, as recovery took place on 6-10-2003 and with a day in between property was sent to Chemical Examiner on 6-10-2003. Neither any enmity has been shown between the appellants and the complainant. It is a cardinal principle of criminal law that, "actus non facit reum nisi mens sit rea" i.e. a deed does not make a man guilty unless his mind is guilty.

19. Burden of proof of allegation made by prosecution rests on it and prosecution has to prove beyond reasonable doubt every element of the offence with which the accused is charged, which has sufficiently been discharged by prosecution in the present case.

20. ' In view of the above discussion, we are of the considered opinion that the appeal at hand does not have any merits and, therefore, the same is dismissed. The above are the reasons for the short order which was announced in Court.