NOORULLAH Versus State
ABDUL MOBEEN LAKHO, J .---Appellant Noorullah son of Rehmatullah was tried by the learned VIIIth Additional Sessions Judge/ (MCTC), Karachi (West), in Special Case No.591/2020, [The State v. Noorullah]. After full-dressed trial, vide impugned judgment dated 13.04.2021, the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced to 05 years and 06 months R.I, and to pay fine of Rs.30,000/-; in case of default appellant was ordered to suffer 05 months' S.I. Appellant was extended benefit of section 382-B, Cr.P.C.
2. Being aggrieved and dissatisfied, Criminal Jail Appeal No.262 of 2021 was filed on 18.05.2021 by the appellant through Superintendent, Central Prison, Karachi, whereas, Criminal Appeal No.261 of 2021 was filed on 07.05.2021 by the appellant through his counsel. Appellant engaged his own counsel in Criminal Appeal No.261 of 2021. We intend to decide both appeals by this judgment.
3. Brief facts leading to the filing of the instant appeal are that on 15.07.2020 at about 1800 hours ASI Mazhar Khan of PS SITE-B along with PCs Waseem, Arshad Ahmed and Zulfiquar left PS for patrolling in police mobile in the area. During patrolling at about 1800 hours, when police reached near gate of Small Industries, Baldia Traffic Chowki, main Hub river road, SITE area Karachi, they found a person standing in suspicious condition having shopper in his hand. Police apprehended the accused, who on inquiry disclosed his name as Noorullah son of Rehmatullah. Complainant opened the shopper and recovered three packets of chars wrapped in yellow color tape. Each packet was weighed, which became 1200 grams total weight of charas became 3600 grams. On his personal search, police also recovered two mobile phones, CNIC of accused and cash of Rs.400/-. Charas was sealed on the spot in presence of mashirs and such memo was prepared. Thereafter, accused and case property were brought at Police Station, where complainant lodged the FIR on behalf of State.
4. Trial Court framed charge at Ex.02 to which accused pleaded not guilty and claim to be tried.
5. During trial, the prosecution examined PW-1 complainant ASI Mazhar Khan at Ex.3, PW-2 Mashir PC Muhammad Waseem at Ex.4 and PW-3 Investigating Officer SIP Irshad Hussain at Ex.5, who produced and exhibited the relevant documents. Thereafter, prosecution side was closed.
6. Trial Court recorded statement of accused under section 342, Cr.P.C. at Ex.7, wherein he denied the prosecution allegations and claimed his false implication in the case. However, he neither examined himself on oath nor produced any witness in his defence.
7. On conclusion of the trial, after hearing learned counsel for the parties and assessing the evidence brought on record, learned trial Court convicted and sentenced the appellants through impugned judgment dated 13.04.2021 as detailed above.
8. Mr. Dilawar Hussain, learned counsel for the appellant has argued that appellant has been falsely implicated in the case and charas has been foisted upon him; that there were material contradictions in the evidence of the prosecution witnesses who all are police officials; that though private persons were available on spot, but no one from them was associated to witness the arrest and recovery, which caused dent in the prosecution case; that prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner; that the learned trial Court did not appreciate the evidence in line with the applicable law and surrounding circumstances and based its findings on misreading and non-reading of evidence and arrived at a wrong conclusion in convicting the appellant merely on assumptions and presumptions. Lastly, contended, the conviction and sentence recorded by learned trial Court is liable to be set-aside. In support of his contentions, learned counsel has placed reliance upon the following case law: i. 2018 YLR 2358 (Abdul Waqar v. The State) ii. 2018 PCr.LJ Note 30 (Taiz Ali and another v. The State)
9. Mr. Muhammad Noonari, learned DPG while supporting the impugned judgment contended that appellant was found in possession of 3600 grams charas; that such a huge quantity of charas could not be foisted upon the appellant by the police; that section 103, Cr.P.C. is not applicable in the narcotics cases and the application of the same is expressly excluded under section 25 of the C.N.S Act, 1997; that all the prosecution witnesses have fully supported the case of prosecution; that no material contradiction could be brought on record; that safe custody and safe transmission to the chemical examiner have been proved by the prosecution at trial; that evidence of police officials is as good as of private persons unless mala fide is brought on record. He therefore, prayed for dismissal of instant appeal.
10. We have carefully heard the learned counsel for the parties, and scanned the entire evidence available on record.
11. After hearing arguments of learned counsel for the parties, we have come to the conclusion that the prosecution has proved its' case against the appellant beyond any shadow of doubt for the reasons that P.W-1 Complainant ASI Mazhar Khan has deposed that on 15.07.2020, he left PS along with PCs Waseem, Arshad and Zulfiqar for patrolling. During patrolling, when at 1800 hours, police party reached at SPT Small Industries main gate Baldia Traffic Chowki Hub River Road Karachi, they saw one person in suspicion condition, having shopper in his hand, who was apprehended by the police. On inquiry, he disclosed his name as Noorullah son of Rehmatullah. ASI Mazhar Khan opened the shopper and found three packets of charas wrapped in brown color tape. From his personal search a copy of his CNIC and cash of Rs.400/- were also recovered. Charas was weighed in presence of mashirs, each packet became 1200 grams, total 3600 grams. Charas was sealed in presence of mashirs and such memo was prepared on spot. Thereafter, accused and case properties were brought at police station where after registration of FIR, investigation was handed over to I.O. SIP Irshad Hussain, he visited the place of incident and prepared such memo of inspection. In cross-examination, ASI Mazhar Khan denied the suggestion that accused was fruit seller and he was arrested from Sher Shah. P.W-02 PC Muhammad Waseem and P.W-03 SIP Irshad Hussain have fully supported the complainant. Investigating Officer has deposed that on 15.07.2020, he received case property and custody of accused for investigation. He further stated that he visited the place of incident in presence of mashirs. Investigating Officer recorded 161, Cr.P.C. statements of PWs, sent the charas for chemical examination to expert and received positive report. Thereafter, he submitted the challan in Court against the accused under section 9(c) of the Control of Narcotic Substances Act, 1997. Investigating Officer in his cross-examination denied the suggestion that he was deposing falsely against the accused.
12. Appellant/accused raised simple plea of his false implication in this case and stated that P.Ws are police officials, they have deposed against him falsely. Defence plea appears to be afterthought and it has rightly been disbelieved by trial Court.
13. Record shows that evidence of P.Ws namely ASI Mazhar Khan, PC Muhammad Waseem and I.O SIP Irshad Hussain is coherent and confidence inspiring. They have corroborated each other on all material points/recovery and the manner in which recovery was effected from the possession of appellant.
14. So far as the contention of the learned counsel for the appellant that no private person had been associated to witness the recovery, as such, the recovery was foisted, is devoid of force as by virtue of section 25 of the Control of Narcotic Substances Act, 1997 application of section 103, Cr.P.C. is excluded in Narcotics cases. Reluctance of general public to become witness in such like cases has become judicially recognized fact and there was no way out but to consider statement of official witness, as no legal bar or restriction has been imposed in such regard. Police officials are as good witnesses and could be relied upon, if their testimony remained un-shattered during cross-examination. Reliance is placed upon the case reported as Salah-ud-Din v. State (2010 SCMR 1962). Reliance is further placed upon a case reported as Abdul Wahab and another v. The State (2019 SCMR 2061), wherein the Honourable Supreme Court has held as under:
"3. Prosecution case is, primarily, structured upon statements of Izhar Ali Shah, ASI (PW-1), Muhammad Ayub (PW-2) and Abdul Haq, Inspector (PW-4); we have gone through their statements and found them in a comfortable unison, despite flux of time, on all the salient aspects of the prosecution case, in terms of interception of the petitioners and recovery of contraband, they are consistent, straightforward and confidence inspiring and their statements cannot be discarded merely on account of absence of a witness from the public; people seldom come forward to perform their civic responsibilities and official witnesses are no less credible or trustworthy provided their statements rang true, as is the case in hand."
15. In the instant matter, the recovered narcotics was kept in safe custody from the time of its' recovery to the time when charas was transmitted to chemical analysis and no suggestion of tampering with the same has been brought on record. Learned counsel for the appellant failed to point out anything from the record to establish that the said parcel was ever tampered with and was not safely transmitted to the chemical examiner rather the evidence led by the prosecution as well as the report of the chemical examiner established that the parcel received by the said agency, remained intact. We could not find anything from the record, which could suggest that the safe chain of custody of the samples was compromised. Positive forensic report at Ex. 5/E, confirms the nature of the substance, recovered in a huge quantity that cannot be possibly foisted in routine.
16. As regards to the false implication of the appellant in the case is concerned, learned defence counsel has failed to point out anything in the cross-examination of the prosecution witnesses that charas has been foisted upon the appellant by the police. Learned defence counsel has also failed to point out enmity of the police officials with the appellant and even the appellant has taken no such plea in his statement recorded under section 342, Cr.P.C. at Ex. 7.
17. We have found all the prosecution witnesses straightforward and consistent, bracing the cross-examination without any embarrassment. Their evidence is not rendered untrustworthy only on account of their being official witnesses.
18. Coming to the last contention of learned counsel for the appellants that there are material contradictions in the testimonies of prosecution witnesses which are fatal to the prosecution case. We are in agreement with the learned counsel for the appellant to that extent of the proposition but irrespective of veracity of the defence version, a distinction is always to be made between minor inconsistencies or variance in the testimony of witness from the contradiction in the evidence. Only such statement shall be termed as contradictory, which are either destructive of each other or they are totally different to the extent that two versions cannot be reconciled. Such contradiction shall always lead to the benefit of defence, however, the variance of testimony of witnesses or inconsistencies on the point shall not lead to such conclusion, which are not material in nature and do not introduce or suggest a totally different version to the prosecution case. The minor discrepancies in the instant case are not of such nature which could bring the case within the exception supra. Reliance is placed on the case reported as Sarfaraz alias Sappi v. The State (2000 SCMR 1758), wherein the Honourable Supreme Court has held as under:
"In the cross-examination of both the PWs i.e. Ahmed Khan and Sakhawat Hussain their above version was not shaken at all inasmuch as concerning the incriminating portion of their testimonies there was no sufficient impeachment. Resultantly, we have to form a positive opinion that incriminating portion of the evidence is consistent, coherent, trust worthy as well as natural i.e. free from any exaggeration. However, we may mention here that if in cross-examination intrinsic value of incriminating evidence of a witness has not been shaken his statement cannot be discarded for minor contradictions etc. Reference may be made to the case of Mushtaq alias Shaman v. The State PLD 1995 SC 46".
19. The case law relied upon the learned counsel for the appellant in the peculiar circumstances of the case is not applicable and distinguishable to the facts and circumstances of this case.
20. Thus, for the reasons mentioned above, we find that the prosecution has proved its' case beyond a reasonable doubt against the appellant and the impugned judgment is upheld, resultantly, the appeals are dismissed.
JK/N-39/Sindh Appeals dismissed.