ROSHAN ALI Versus State
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 as under at para 8 P.66.
"We are not agreeable with the contention of the learned counsel because fact remains that "Poppy Flowers" were found lying on the roof of the vehicle therefore, the technicality, which is being pointed out by the learned counsel, would not be sufficient to acquit him. In addition to it in such-like cases Courts are supposed to dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities, as it has been held in (1993 SCMR 785) and (PLD 1996 SC 305"). (bold added)
(o) No doubt it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case which we disbelieve. This is because the appellants have simply raised the bald allegations that they have been falsely implicated in the case yet they have not suggested any specific enmity with any PW who as such had no reason to falsely implicate them in the case.
12. Thus, for the reasons mentioned above, we find that the prosecution has proved its case beyond a reasonable doubt against the appellants and the impugned judgment is upheld and all their appeals against conviction are dismissed.
Turning to the State's appeal against acquittal in respect of respondent Mst. Kainat.
13. Learned Additional P.C. submitted that the reasons given in the impugned judgment for acquitting the respondent Mst. Kainat were perverse, arbitrary, whimsical and were completely against the evidence on record which had lead to a miscarriage of justice and as such her acquittal be set aside and she be convicted and sentenced for the offence charged.
14. Learned counsel for respondent Mst. Kainat submitted that the grounds for over turning an appeal against acquittal were very narrow which carried a double presumption of innocence and that the trial court had rightly acquitted the respondent based on the evidence on record by extending her the benefit of the doubt and as such the state's appeal against acquittal be dismissed and the respondent's acquittal in the impugned judgment be upheld.
15. We agree with learned counsel for respondent Mst. Kainat that it is settled law that judgment of acquittal should not be interjected unless findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous as held by the Supreme Court in the case of The State v. Abdul Khaliq and others (PLD 2011 Supreme Court 554). Moreover, the scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of the innocence is significantly added to the cardinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty. In other words, the presumption of innocence is doubled as held by the Supreme Court in the above referred judgment. The relevant para is reproduced hereunder:-
"16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against acquittal is not the same, as against cases involving a conviction. In this behalf it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are ......
From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals." (bold and italics added)
16. Having gone through the impugned judgment it appears that respondent Mst. Kainat has been acquitted for the reasons mentioned at para 21 of the impugned judgment which we set out below for ease of reference;
"21. As per prosecution story, two bags containing 75 kilograms of charas were lying on rear seat in between two lady accused Mst. Bakhtawar and Mst. Kainat and it has been established during trial that all the persons sitting in the car were having knowledge about the placement of contraband charas in the car. Accused Oshaque being driver and custodian of the car cannot be absolved from responsibility whereas accused Roshan Ali and his wife Mst. Bakhtawar being mature persons were knowing about placement of charas in the car and they were in a position to avoid boarding in the car if they were not involved in the transportation of charas. However, accused Mst. Kainat by appearance looked juvenile and is not of such aged person, who was initially treated as juvenile offender and later-on on the basis of report of Medical Board she was treated as adult accused and tried jointly with other accused, appears to be neighbor of accused Roshan Ali and Mst. Bakhtawar as she is neither related to them nor she is their caste fellow. She had no other choice but to sit in the same car with other accused with whom she had come. Her involvement in transportation of charas could not be established by the prosecution. Her relationship with other accused has also not been established". (bold added)
17. We find that exactly the same evidence, reasoning and findings as discussed in paragraph 11 of this judgment apply equally to respondent Kainat which lead us to dismiss the appeals of the other appellants (Oshaque, Roshan Ali and Mst. Bakhtawar). Exactly the same evidence is on the record of the trial court which lead to the conviction of the aforesaid appellants as lead to the acquittal at trial of the respondent Mst. Kainat. Once the learned trial judge believed the PW's as he did then he had no option but to also convict respondent Mst. Kainat. She was travelling in the same car as the appellants when it was stopped by the police and the recovery of the narcotics was made hidden between her and appellant Mst. Bakhtawar both of whom were sitting next to each other in the back seat of the car with the narcotics between them. Mst. Kainat was also arrested on the spot along with the other appellants when the narcotics were recovered next to her in the car, she had no specific enmity with the police for them to falsely implicate her, she did not raise her defence that she was picked up from another van and falsely implicated in this case during cross-examination which was only used as another afterthought during her section 342, Cr.P.C. statement.
18. Even para 21 of the impugned judgment which lead to her acquittal and was reproduced earlier in this judgment states as under in material part;
"As per prosecution story, two bags containing 75 kilograms of charas were lying on rear seat in between two lady accused Mst. Bakhtawar and Mst. Kainat and it has been established during trial that all the persons sitting in the car were having knowledge about the placement of contraband charas in the car."
19. Thus, having in effect found the respondent Mst. Kainat guilty in the above excerpt of the impugned judgment the learned trial judge then goes on to acquit her primarily 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 .he other appellants. We find such finding to be utterly perverse, arbitrary and completely contrary to the evidence on record. This is because the respondent Mst. Kainat was 20 years of age at the time of the offence and therefore was certainly old and mature enough to be responsible for her actions; that there is no evidence that she was forced to accompany the appellants in the car and that simply because she is not a blood relative to the other appellants does not exonerate her. By the same token/reasoning appellant Oshaque who is not related by blood to appellants Roshan Ali and Mst. Bakhtawar by applying the same logic/reasoning should also have been acquitted by the trial court. The trial court even finds that the respondent is a neighbour of the appellants and thus had a nexus with them and a reason to be in the car with them.
20. Thus, we find respondent Ms. Kainat's acquittal by the trial court to be on account of glaring errors of law and fact committed by the Court in arriving at the decision, which would result in a grave miscarriage of justice and that the acquittal judgment is perfunctory, wholly artificial and a shocking conclusion has been drawn which is completely contrary to the evidence on record and thus we allow the States appeal against acquittal in respect of respondent Mst. Kainat set aside her acquittal as held in the impugned judgment and convict her for the offense under section 9(c) of the CNSA stated in the amended charge dated 23.05.2018 and sentence her to suffer R.I. for life and pay fine of Rs.500,000/=, in case of default in payment thereof, she shall suffer further S.I for six months, however, benefit of section 382(b), Cr.P.C. be extended to her.
21. Mst. Kainat is called absent. The SSP Larkana is directed to immediately arrest the respondent Mst. Kainat and hand her over to the women's prison at Larkana where she shall serve out her sentence. A copy of this Judgment shall be sent to SSP Larkana for implementation and he shall file his compliance report within four weeks of the date of this judgment.
22. In summary, all the appeals against conviction are dismissed and the States appeal against acquittal of respondent Mst. Kainat is allowed.
23. The above appeals against conviction and acquittal stand disposed of in the above terms.
JK/R-1/Sindh Order accordingly.