MUHAMMAD AYAZ Versus State

FAHIM AHMED SIDDIQUI, J .---Appellants Muhammad Ayaz (Cr. App. No. D-198/2019) and Jamaluddin Achakzai (Cr. App. No.D-218/ 2019) have filed separate appeals whereby they impugned judgment dated 13.09.2019 passed by Additional Sessions Judge-III (MCTC-II) Sukkur in Special case No. 88 of 2013. The said case was initiated upon FIR No. 22 of 2013 of Police Station A.N.F Sukkur lodged under Section 9 (c) Control of Narcotic Substances Act, 1997 hereinafter referred to 'CNS Act). Through the impugned judgment, the appellants were convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 100,000/-, in case of non-payment of fine, they were ordered to suffer S.I for one year more. However, the appellants were extended the benefit of section 382-B, Cr.P.C. Since both the appeals are preferred against the same judgment; therefore, it will be appropriate to dispose of both of them simultaneously.

2. Brief facts leading to the filing of appeal are that on 06.12.2013 at about 0300 hours, a police party of ANF Sukkur headed by SIP Ali Gul, on spy information, stopped a Toyota Corolla Car bearing Registration No.AGB-102 at Toll Plaza. Two persons were found sitting in Car and driver disclosed about the availability of narcotics in the boot/dickey of the Car. On search from boot/dickey of Car, 116 kilograms of charas was recovered in the shape of slabs in presence of marginal witnesses ASI Afzal Nazeer and PC Zaheer. From the personal search of both accused, some documents, cash, mobile phones, and original registration book No. ALL-819 of Toyota Corolla Saloon Car in the name of Abid Ali were also recovered. The recoveries and the accused persons brought at ANF Police Station, where the present case under section 9(c) CNS Act, 1997 was registered against the accused.

3. After completing requisite formalities, a charge was framed but the appellants/convicts denied the same and claimed trial. The trial was initiated and the prosecution was directed to produce the evidence against the appellants/ convicts. The trial commenced after completing the requisite formalities.

4. To establish the charge, the prosecution examined two witnesses including complainant/ Investigation Officer SIP Ali Gul at Exh.6 and marginal witness/eye-witness ASI Afzal Nazeer at Exh.7. After the closure of the prosecution side, the statement of the appellants/convicts was recorded under section 342, Cr.P.C. in which they once again denied the allegations of the prosecution and pleaded their innocence. However, neither they opted for recording their statements on oath nor led any evidence in defense.

5. Mr. Abdul Waheed Khushk, learned counsel for appellant Muhammad Ayaz (Cr. App. No. D-198/2019) before Opening his arguments recited the entire deposition. After such recital, he submits that only the complainant and eye-witness were examined since the complainant was also the investigation officer. According to him if the complainant and investigator are the same then the prosecution has to examine both the marginal witnesses/eye-witnesses of the case. He submits that the safe custody of the recovered narcotics and samples are also questionable. He further submits that the prosecution could not establish the safe custody of the narcotics. He also controverts the mode of recovery. He submits that the recovery was affected due to the spy information and in such a situation the raiding party has to associate a private witness. In support of his arguments, he relied upon the cases of Muhammad Saddique v. The State (2011 YLR 2261), Abdul Ghani and others v. The State and others (2019 SCMR 608) and Sultan Ahmed v. The State (2020 MLD 682).

6. Mr. Mehfooz Ahmed Awan, learned counsel for appellant Jamaluddin (Cr. Appeal No. D-218/2019) has assailed the prosecution case from different angles. According to him, the investigator has not recorded the statement of the dispatcher of samples to the chemical lab, which is a fatal mistake of the prosecution case. He submits that the prosecution has to examine the dispatcher to establish the safe transaction of the samples up to the destination of the chemical laboratory. Even neither the outward letter for sending the samples nor the road certificate was produced during trial. He further submits that the incharge of Store Room should also be produced as a witness or at least the entry of Store Room should be produced to establish the safe custody of the recovered case property. According to him, the raiding party ) has not weighed each slab separately as there were two slabs in each packet. He submits that the envelopes of the samples were also an important piece of evidence and the same should also be produced as articles but they were not produced. Mr. Awan has also drawn our attention towards one or two contradictions of the deposition of witnesses. However, in the end, he emphasis about the innocence of his client by submitting that the prosecution could not collect material to establish that his client was an associate of the main accused i.e. driver of the vehicle. According to him, at the most, the appellant may be treated as a passenger or traveler, as such the question of conscious knowledge of the appellant Jamaluddin regarding the narcotics remains there and the same to be addressed. In support of his arguments, he relied upon Ameer Zeb v. The State (PLD 2012 SC 380) and Abdul Ghani's case (supra).

7. While supporting the impugned judgment, Mr. Mohsin Ali Khan, the Special Prosecutor ANF, submits that a huge quantity of contraband substance was recovered, as such foisting of such a huge quantity is not possible. According to him, both the appellants are well in the knowledge of the narcotics as the same was not in some secret vault but in the boot of the car. He submits that the prosecution has fully supported the case and since the complainant himself has delivered the samples; therefore, there will be no need for the road certificate. He specifically points out that since the appellant Jamaluddin has not taken defence of conscious knowledge during the trial; therefore, no such defence could be taken at this stage. He submits that there is no enmity of the raiding party with the appellants, as such there appears no reason for false involvement. He relies upon the cases of Ghufran Shah v. Farid Khan ASI and 5 others (2019 PCr.LJ 1346) and Budho and 2 others v. State (2018 PCr.LJ 1393).

8. We have heard the arguments and scanned the entire material with the able assistance provided to us. We have also enlightened ourselves from the cited case laws.

9. At the very initial point of arguments, the defence has tried to controvert of non-examining of the second marginal witness of the arrest and recovery memo. It is contended that since the complainant and investigation officers are the same; therefore, the prosecution must examine the second eye-witness i.e. the other marginal witness of the memo. This contention was advanced by Mr. Abdul Waheed Khushk without referring to any case law in this respect. Nevertheless, we are of the view that this contention of the learned counsel is not correct. The prosecution has a right to decide to whom they will examine amongst the calendar of witnesses. The second marginal witness is actually; a witness of cumulative evidence and as per rules of evidence, it is not necessary to produce cumulative evidence regarding the same fact. When prosecution may establish a fact by producing one witness, it is absolutely unnecessary for them to produce another witness regarding the same point rather it may be harmful in some situations. In the case of Habibullah and another v. Insp. Rasool Bux and another (2020 YLR 313), this Court has already observed as:

"In the instant case, the prosecution has given up one of the marginal witness which is usually done by the prosecution as to establish any memo., it is not necessary to examine all the marginal witnesses in a criminal case. In criminal cases, for establishing a 'memo.', usually cumulative evidence is avoided if the prosecution considers satisfaction after producing only one marginal witness."

10. Another aspect of the instant case needs to be addressed. Both the advocates have shown their anxieties regarding the chain of safe custody from the point of recovery to the recipience of the same in the office of the Chemical Examiner. Both the learned counsel did not indicate the material on record, which has urged them to ponder over the safety of the samples during the transition to the government chemical laboratory and secure custody of the case property till its production before the trial Court except an objection from Mr. Mehfooz Awan regarding non-examiner of the despatcher. No doubt, the safe custody of the sample and case property and secure transaction to its ultimate destination are important. But there should be some strong reason to controvert the same and without indicating the reasons for such anxiety, the same is not addressable. Nevertheless, it is reflected from the record that just after completing the process of arrest and recovery, the raiding party directly approached the nearest ANF Police Station, where sufficient facilities for the safe custody of recovered narcotics are available. According to prosecution witnesses after recovery, they directly approached the ANF facility and after lodgment of FIR., the accused was locked up and the recovered narcotics were put in the possession of the incharge for keeping safe in the store-room. There exist no reason to disbelieve the prosecution witnesses regarding this aspect of the case, as such we are of the considered view that the requisite formalities regarding the chain of safe custody envisaged under Section 27 of the CNS Act were fulfilled. Now, it is apparent that the chain of safe custody of recovered property along with representative samples from the point of recovery to the facility of ANF was fully established. The safe-custody of the property and sample continued when they were handed over to the incharge of ANF Store-Room from where the samples were transmitted to the chemical laboratory and case property was produced safely before the trial Court at the requisite time. At the office of the chemical examiner, the samples were received from the complainant in seal condition, as such the continuity of chain of safe-custody of the sample from the point of recovery to the ultimate destination of the chemical laboratory is also established. It is pertinent to mention that the chain of safe-custody was not questioned during the trial and even no question was put to any witness regarding this aspect of the case. We are of the view that in these circumstances, the examination of incharge of Store-Room of ANF facility/ police station as well as the production of certificate and extract of the requisite register are least necessary. So far, the non-examining of the despatcher is concerned, the same is also out of the question as the chemical examiner report indicates that the samples were brought in the office of the chemical examiner by the complainant himself.

11. Mr. Awan also controverted the sampling procedure by submitting that there were two slabs in each packet but the witness and memo indicate that the sample was taken from each packet. He has the impression that the raiding party has not collected a representative sample from each packet but such a thing is not supported by any cogent reasoning and the same is only a misapprehension. Now if the contention of the learned counsel is accepted as gospel truth, it means that the sample of the recovered quantity of chars is representing half of the recovered property i.e. 58 kg, which itself is a huge quantity. In the instant case, the prosecution has brought sufficient and unshaky evidence to establish that from the car driven by appellant Muhammad Ayaz (Cr. App. No. D-198/2019) total 116 kg charas was recovered. It is pertinent to mention that neither it is alleged nor the same is believable that such a huge quantity of the narcotics was foisted by the raiding party even on account of animosity. However, none of the appellants have specifically alleged animosity with any of the members of the raiding party. It is also alleged that the empty envelopes/casings of samples were not produced during the trial. We are of the considered view that production of the same are least necessary as the recovery of narcotics has already been established through the report of the chemical analyzer.

12. Nevertheless, one aspect of the case has drawn our attention pertains to the case of the appellant Jamaluddin (Cr. Appeal No. D-218/2019) which is distinguishing from the case of the main accused. Appellant Jamaluddin was neither the driver nor the owner of the vehicle which was employed for transportation of a huge quantity of recovered narcotics. He was only sitting in the car as on the passenger seat. The prosecution could not bring evidence to establish that he is the playmate of the main culprit in the entire episode. He is not relative to the main culprit, who was occupying the driving seat and driving the car at the time of intercepting by the raiding party. The prosecution could not effectuate or catalyze through some concrete material that the appellant Jamaluddin boarded in the vehicle from the same place and he was well aware that in the boot (dicky) of the car some contraband articles are lying. The mere presence of a person in a vehicle wherefrom some narcotics were recovered would not sufficient to hold the seater liable for such recoveries unless the prosecution establishes through reliable evidence about his conscious knowledge. The seater on the passenger seat could not be connected on the basis of possibilities or assumptions. The assumption of his conscious knowledge is equally hypothesized about his unawareness of the availability of something illegal considering that he might have been travelling as a passenger or roadside free-rider by taking a lift from the main culprit. In these circumstances, our thoughts are parallel to M. Awan regarding the lack of conscious knowledge of appellant Jamaluddin in Cr. Appeal No. D-218/2019 when, the prosecution could not bring forth any worthwhile material regarding the same. In the case of Hussain Shah and others v. The State (PLD 2020 Supreme Court 132), a full bench of the Apex Court has exonerated the cleaner of a truck on account of lacking evidence regarding conscious knowledge of the recovered narcotics from the truck. In the existing position of affairs, it is our considered opinion that the charge of having narcotics in the boot (dicky) of the car is not established against appellant Jamalud-din Achakzai (Cr. Appeal No. D-218/ 2019) as no evidence available on the record to justify the conscious knowledge of the said appellant. Nonetheless, we are of the definite view that the prosecution has successfully brought the guilt of the appellant Muhammad Ayaz (Cr. App. No. D-198/2019) at home and he was rightly convicted. Hence, we allowed the appeal of appellant Jamalud-din Achakzai (Cr. Appeal No. D-218/ 2019) while the appeal of appellant Muhammad Ayaz (Cr. App. No. D-198/ 2019) was dismissed through our short order dated 23.09.2020 which is reproduced for the sake of brevity as under.

"Heard arguments. For the reasons to be recorded later on, Cr. Appeal No. D - 198 of 2019 is dismissed while Cr. Appeal No. D-218 of 2019 is allowed. Appellant Jamaluddin son of Dad Khan Achakzai is acquitted of the charge. It is hereby ordered that he should be released forthwith, if not required in any custody case. Office is directed to place a signed copy of this order in the captioned connected appeal."

These are the reasons for above mentioned short order.

JK/M-215/Sindh Order accordingly.