MUHAMMAD SALEH Versus State

KHADIM HUSSAIN M. SHAIKH, J. ---This judgment will dispose of two captioned appeals arising out of judgment dated 21.09.2015, passed by learned Sessions Judge/Judge, Special Court for Narcotics, Mirpurkhas in Special Case No.27 of 2014 re: State v. Allah Dino and another, emanating from Crime No. 06/2014, registered at P.S. Excise DIO, Mirpurkhas, whereby appellants Allah Dino Lodho and Muhammad Saleh Brohi have been convicted for offence punishable under section 9(c) of C.N.S. Act, 1997 and sentenced to suffer RI for life imprisonment with fine of Rs.20,000/-each and in case of default in payment of fine to undergo SI for six months, extending them benefit of section 382-B, Cr.P.C.

2. Briefly the facts of the case are that on 8.6.2014 complainant A.E.N.O Muhammad Qasim Rahoo of P.S. DIO Excise Mirpurkhas and his subordinate staff, while were on patrolling, when reached at 78 Mori Mirpurkhas, they received spy information that two persons taking charas in Alto Car bearing registration No.ADF-078 are coming towards Umerkot and on such a tipoff, they remained near Railway crossing 78 Mori and after a while they saw the pointed car coming, which was halted on their signal and they found two persons sitting therein. On enquiry the person sitting on driving seat disclosed his name as Allah Dino, while the other person sitting on front seat of the car disclosed his name as Muhammad Saleh Brohi. On search and disclosure of the accused, the police party recovered 15 packets of charas from the loud speaker box installed on the CNG cylinder and 35 packets, lying inside the CNG cylinder, each recovered packet of charas weighed to be one kilogram and, thus, charas total weighing 50 K.Gs was recovered from the aforesaid Car and both the accused were arrested there. 10 grams as sample from each packet were separated for chemical analysis and total 50 samples were sealed separately in brown envelops for expert opinion, and, whereas the remaining charas was sealed in two plastic sacks (KATTAS) i.e. 25 packets in each sack and such mashirnama in presence of mashirs EC Muhammad Zafar and EC Muhammad Yousuf was prepared at the spot. Then the arrested accused and the recovered property were brought at Police Station, DIO Excise, Mirpurkhas, where the complainant AENO Muhammad Qasim Rahoo lodged the above FIR on behalf of the State. After usual investigation, the aforesaid accused were sent up with the challan to face their trial.

3. After completing the formalities, a formal charge was framed against the accused (who hereinafter will be referred to as the appellants) at Ex.3, to which, the appellants pleaded not guilty and claimed trial vide their pleas at Ex.3/A and Ex.3/B.

4. To prove its case, the prosecution examined PW-1 complainant/I.O. AENO Muhammad Qasim at Ex.9, who produced copies of departure and arrival entries, mashirnama of arrest and recovery, FIR, receipt of sample of the property issued by the office of chemical examiner, FSL report and corrigendum at Ex.4/A to 4/F; PW-2 EC Muhammad Zafar at Ex.5 and thereafter the prosecution closed its side vide statement at Ex.6.

5. The statement of the appellants under section 342, Cr.P.C. were recorded at Ex.7 and 8, wherein they denying the allegations, professed, their innocence and their false implication in this case. Appellant Allah Dino has produced certain documents at Ex.7/A to Ex.7/1. They, however, neither examined themselves on oath as required under section 340(2), Cr.P.C. nor did they examine any person in their defence.

6. At the conclusion of the trial, learned trial Court has convicted and sentenced the appellants as discussed in paragraph-1 supra vide the impugned judgment dated 21.9.2015.

7. Being aggrieved by the above judgment, the appellants have preferred this appeal.

8. It is, inter alia, contended by the learned counsel for appellant Muhammad Saleh that the said appellant is innocent and he has been falsely implicated in this case at the instance of ATO Abdul Jabbar Gharano and as well as at the instance of Jan Muhammad Ansari, the Manager of Ex-Minister Ismail Rahoo and Aslam Rahoo; that appellant Muhammad Saleh is not owner of the car where from the charas was recovered nor appellant Muhammad Saleh, who was found sitting on front seat of the car driven by co-accused Allah Dino at the time of recovery of charas, had knowledge about keeping the charas in secrete cavities of the car; that no independent person was associated with the recovery proceedings; that there are material contradictions in the prosecution evidence; and, that the prosecution has failed to prove the case against appellant Muhammad Saleh beyond reasonable doubt. He, therefore, prays that the appellant Muhammad Saleh may be acquitted. He has placed his reliance on the cases of PLD 2009 Karachi 191, 2010 YLR 2276, 2008 PCr.LJ 1268, 2016 MLD 920, 2008 MLD 797 and 2010 SCMR 927.

9. Learned counsel for appellant Allah Dino adopting the arguments of learned counsel for appellant Muhammad Saleh, further submits that the said appellant has been falsely implicated in this case at the instance of above named persons by foisting upon him the subject charas. He, therefore, prays that appeal may be allowed and appellant Allah Dino may be acquitted.

10. Learned Additional Prosecutor General Sindh has mainly contended that a huge quantity of 50 K.Gs charas was recovered from the secret cavities of the Car on the disclosure of the appellants, who both were available in the said Car and of whom appellant Allahdino is undisputedly driver of the said Car; that samples from all the 50 packets of charas recovered from the Car were deposited by the complainant AENO Muhammad Qasim himself on the following day in the office of FSL; that the report of all the 50 samples is positive; that no direct animosity is alleged against the complainant and PW EC Muhammad Zafar by the appellants; that there are no material contradictions in the prosecution evidence; that the police witnesses are as good as the private witnesses; and, that the prosecution has proved its case against the appellants beyond any shadow of doubt. He has placed his reliance on the cases of PLD 2006 SC 61, 2010 YLR 261.

11. We have considered the submissions of learned counsel for the appellants and learned Additional P.G. for the State and have gone through the evidence brought on the record with their assistance.

12. From a perusal of the record it would be seen that 50 samples separately sealed were received in the office of FSL on the following of the recovery i.e. 09.6.2014 and report of all the 50 samples is positive. The prosecution has examined PW-1 complainant/IO AENO Muhammad Qasim, who has deposed that on receipt of information regarding smuggling of charas by the appellants the pointed Car driven by appellant Allahdino came at the spot of recovery, was halted by giving signal to it; appellant Muhammad Saleh Brohi was also seated on the front seat of the Car and then the recovery of 50 kilograms charas from the secret cavities of the Car namely Loudspeaker box and CNG Cylinder was effected. His ocular, testimony was subjected to unusual lengthy cross-examination by the defence, but he stuck his stance regarding arrest of appellants and recovery of charas from the secret cavities of the Car; PW-2 Mashir EC Muhammad Zafar has also testified to the effect that recovery of charas was made in his presence; by lengthy cross-examination to both the PWs, the learned defence counsel attempted to make dent in the prosecution case and to bring their evidence under shadow of doubt, but the defence has failed in doing so, for, both the prosecution witnesses firmly supported prosecution stance regarding recovery of charas from the secret cavities of Car driven by appellant Allahdino and availability of co-appellant Muhammad Saleh in the said Car. The case property including the Car were produced before the Court during the evidence and the presence of the appellants in vehicle wherein the subject contraband charas was being transported by keeping it in its secret cavities is fully established. From the trend of cross-examination and the stance of both the appellants in their statements under section 342, Cr.P.C., it is crystal clear that they are companions and are not strangers to each other and they have taken divergent defence pleas during the trial in cross-examination and in their statements under section 342, Cr.P.C. and none of the defence pleas taken by the appellants has been established by examining any person as their defence witness and even they did not put themselves into the witness box to disprove the charges and in such view of the matter, in our humble opinion the prosecution, has proved the recovery of the aforementioned huge quantity of contraband charas from the appellants.

13. It needs no reiteration that Control of Narcotic Substances Act, 1997 is a special law and it has been specifically provided in section 29 of the Act ibid that presumption of recovery of contraband items is always deemed to be from the accused, who is to prove contrary. The case of Muhammad Noor and others v. State (2010 SCMR 927) is fully attracted to the case one in hand, wherein the honourable Supreme Court of Pakistan has held that:-

"7. The next question for consideration is as to how far the prosecution prove the possession of narcotic substance by the accused.

It is pointed out that in most of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature has enacted a provision in the shape of section 29 in the Act to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drug. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge. The said section reads as under:-

(29) Presumption from possession of illicit articles.---In trials under this Act, it may be presumed unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of---

(a) Any narcotic drug psychotropic substance or controlled substance;

(b) Any cannabis, coca or opium poppy plant growing on any land which he has cultivated;

(c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or

(d) Any material which have undergone any process towards the production or manufacture of narcotic drug psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily.

The above section expressly cast a duty upon the Court to presume in a trial under the Act that the accused has committed the offence under the Act unless contrary is proved. If the case is of possession of narcotic drugs then first prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such drugs. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with it. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prove something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word "Possess" appearing in the section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offence as the word "possess" connotes in the context of section 6 possession with knowledge. The Legislature could not have intended to make mere physical custody without knowledge of an offence, therefore, the possession must be conscious possession. Nevertheless it is different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by virtue of section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance or has physical custody of it or directly concerned with it, unless the accused proves by preponderance of probability that he did not knowingly or consciously possess the article. Without such proof the accused will be held guilty by virtue of section 29, Act, 1997. Reliance is placed on the cases of Inder Sain v. State of Punjab AIR 1973 SC 2309.

8. As regards Driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. The liability of the driver, in view of provisions of section 27 of P.P.C., has been considered by this Court in the case of Sherzada v. State 1993 SCMR 149, wherein it was observed as under:--

The next point raised by the learned counsel was that it is provided in section 27, P.P.C. that when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession, But this argument of the learned counsel is without force on the face of it because section 27, P.P.C. is confined to the Pakistan Penal Code only, as the words "within the mean of this Code" appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from Article 26 of that Order when certain other provisions of the P.P.C. have been made applicable."

This Court in the case of Adil Ahmed v. Deputy Collector, C&CE 1991 SCMR 1951 has observed that in view of the provisions of Customs Act, the drivers and owners were both responsible.

In the case of Rab Nawaz v. The State PLD 1994 SC 858, the liability of drivers was again considered and lenient view was taken, as they expressed their ignorance about the contents and claimed to be simple carriers. In the present case the appellant did not claim to be carrier.

This Court in the case of Nadir Khan v. State 1988 SCMR 189 has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. The relevant portion reads 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 licence 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."

9. Keeping in view the above principles of law, the appellant Muhammad Noor is Driver, therefore, he is in possession of the vehicle and also in possession of the articles whatever lying in it. The allegations against the appellant Muhammad Ramzan is that on his information secret cavities of the vehicle were opened and Charas was secured. Thus, from such information it has been established that he had knowledge of the availability of Charas in the secret cavities of the vehicle. Therefore, the appellant Muhammad Ramzan is also involved in the case along with the appellant Muhammad Noor. Hence, the case has been proved against both the appellants Muhammad Ramzan and Muhammad Noor".

14. The learned counsel for the appellants have not been able to point out any material contradictions which could strike at the root of the prosecution case, for the case stood proved against the appellants to the hilt leaving no room to doubt the veracity of the statements of the PWs; more particularly, when their previous enmity, ill will or animus with the appellants has been proved by the defence. No doubt, the appellant has professed their innocence in their statements, but mere pleading innocence without substantiating the same through cogent and convincing evidence, in presence of strong prosecution case cannot be helpful for the appellants.

15. As far as none association of private person from the locality with the recovery proceedings is concerned, it is now by well settled that police witnesses are as good as private persons and even in absence of evidence of any private person in the instant case, the statements of the PWs, who are police officials is sufficient to prove the recovery of the aforementioned contraband charas of 50 kgs from the possession of the appellants, for, no enmity ill-will or personal grudge to falsely involve the appellants in the commission of this offence involving huge quantity of 50 K.Gs charas, is proved. Moreover, association of private persons as witnesses of recovery is not necessary in the instant case as the application of section 103, Cr.P.C. has been specifically excluded in the narcotic cases by virtue of section 25 of the Act ibid. Reliance on these premises can be placed on the case of Gul Alam v. The State (2011 SCMR 624), wherein the Hon'ble Supreme Court of Pakistan has held that:-

11. The prosecution has successfully brought home the guilt of the petitioner to hilt by producing the witnesses of the recovery of narcotics material and the report of the chemical examiner. The contention of the learned counsel for the petitioner that the recovery was not witnessed by persons from public, we may observe that section 25 of C.N.S.A excludes the application of section 103, Cr.P.C.

In the case of Surraya Bibi (supra), the Hon'ble Supreme Court of Pakistan has held that:-

"Suffice it to observe that police witnesses are as good as civilian witnesses unless it is established on record that police witness, who appeared against the accused, has personal motive/mala fide to involve him/her in the commission of the offence. Reliance in this behalf can safely be placed on Muhammad Naeem v. The State 1992 SCMR 1617."

16. Upon our independent evaluation of the evidence, we find that the testimony of PWs examined by the prosecution is inspiring confidence about its truthfulness and in our humble view the prosecution has stood on its own legs and has produced sufficient evidence to connect the appellants with the offence, for which they are charged. We do not find any material discrepancies or contradictions in the statements of PWs rather they are consistent to each other on all the material aspects of the case regarding the recovery of 50 kgs of charas from the secret cavities of the car, in which both the appellants were found available and were arrested at the spot of recovery and the manner in which the recovery was effected. Moreover, it is by now well-settled that the testimony of a police man as to witnessing of recovery of articles from an accused cannot be disbelieved merely because of his being police man. On scanning the evidence, we find that defence has not brought out anything on record through the cross examination or otherwise to indicate that the samples sent to the FSL were tampered with before reaching to the office of FSL nor anything has been brought out through the cross-examination or otherwise to cast doubt as to the recovery of such a huge quantity of contraband charas from the appellants and the defence has not been able to prove, by examining themselves on oath or even by examining any other witness, their false implication in this case, more so, when we ourselves do not find any cogent reason of false implication of the appellants in this case in plying recovery of such a huge quantity of 50 K.Gs of charas from the appellants. The cases cited at bar by the learned counsel for the appellants being distinguishable on the facts and circumstances are not applicable to the case one in hand, for the cited cases involved multiple material discrepancies coupled with material contradictions in the evidence led by the prosecution in those cases, and thus, none of the cases cited by the learned counsel is helpful to the appellants.

17. In view of what has been discussed above, we are of the considered view that the prosecution has proved the case against the appellants beyond any shadow of doubt and the trial Court, while passing the impugned judgment dated 21.09.2015, convicting and sentencing the appellants, has given valid reasons for arriving at such a conclusion and the impugned judgment, which is based on appreciation of the evidence, does not call for any interference. Accordingly, the appeals are dismissed.

JK/M-184/Sindh Appeals dismissed.