PLJ 2022 Cr.C. (Note) 26
Possession of Narcotics--
----Proposition of law--Conviction--Evidence--It is well established proposition of law due to flux of time, in case of transportation or possession of Narcotics, technicalities of procedural nature or otherwise should be overlooked in larger interest of country, if case stands proved approach of Court should be dynamic and pragmatic, in approaching true facts of case and drawing correct and rational inferences and conclusions while deciding such type of cases--The Court should consider entire material as a whole and if it is convinced that case is proved then conviction should be recorded notwithstanding any procedural defect. [Para 10] A
2017 SCRM 283.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Conviction and sentence--Challenge to--Allegation of--Recovery of huge quantity of contraband--It is an admitted position that appellants were arrested by Excise police officials and from secret cavity of truck which was in driver’s exclusive possession and control, a huge quantity of 80 K.Gs charas was recovered and it would be sufficient for an ordinary person of prudent mind to realize that such huge quantity of contraband could not be foisted upon accused--As far as their testimonies are concerned, there is no, universal rule that evidence of an interested witness per se must be invariably corroborated by independent evidence--If that were cases, then why would Courts at all take into account testimony of interested witness? If no other independent witness is available in case, it would result in a grave miscourage of justice to insist upon independent corroboration--Excise officials are good witnesses, as any other private witness and their evidence is subject to same standard of proof and principles of scrutiny as applicable to any other category of witnesses; in absence of any animus, infirmity or flaw in their evidence, their testimony can be relied upon without demur--Held: It is well established principle of law that driver of vehicle in which contraband is being transported is solely responsible for same. [Para 11 & 12] B, C & D
PLD 2020 SC 132 & PLD 2010 SC 1052.
Mr. J.K Jarwar, Advocate for Appellants.
Mr. Shafi Muhammad Mahar, Deputy Prosecutor General for State.
Date on hearing: 8.9.2020.
PLJ 2022 Cr.C. (Note) 26
[Sindh High Court Karachi, Sukkur Bench]
Present: Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ.
SHOUKAT HUSSAIN and another--Appellants
versus
STATE--Respondent
Crl. J.A. No. D-138 of 2017, decided on 22.9.2020.
Judgment
Khadim Hussain Tunio, J.--Through captioned Crl. Jail Appeal appellants have impugned the judgment dated 16.09.2017 passed by the learned Sessions Judge/Special Judge CNS Ghotki in Special Case No. 01/2016 Re: State versus Shoukat Hussain & another, u/S. 9(c) CNS Act, 1997, culminated from FIR No. 02 of 2015 registered at P.S Excise Ubauro, whereby learned Sessions Judge/Special Judge CNS Ghotki convicted the appellants u/S. 9(c) CNS Act, 1997 and sentenced them to suffer imprisonment for life with fine of Rs. 100,000/- (one lac) each and in case of failure in payment of fine, appellants were ordered to suffer S.I for six months more. However, benefit of Section 382-B, Cr.P.C. was extended to the appellants.
2. Briefly, facts of the case are that on 28.12.2015 complainant Excise Inspector Hassan Ali Dashti registered FIR at P.S Excise Ubauro wherein he has stated that on the same day he along with Excise Inspector Hussain Bux Larik and subordinate staff as disclosed in the FIR, left P.S vide roznamcha Entry No. 02 at 01.30 pm and started checking of vehicles at Sindh Punjab border, where at about 6.00 pm a truck bearing registration No. RIG 5414 came from Sadiqabad in which two persons were sitting. On inquiry driver disclosed his name as Shoukat Hussain, while another person claimed to be cleaner and disclosed his name as Muhammad Arif and they further disclosed that the truck is empty. It is further stated in FIR that complainant on personal-search of driver, secured Rs. 2000/- from front pocket of his shirt and on personal search of cleaner he recovered cash of Rs. 500/-from front side pocket of his shirt, on further search of the truck, complainant secured driving license of Shoukat Hussain and registration book in the name of Bashir Ahmed from dash board of the truck and on further search of the truck, complainant found a secret cavity from back side of driving seat, same was opened and was found contained eighty (80) packets of charas. Charas was weighed at the spot and it became 80 K.Gs. Out of each packet he separated 100 grams and wrapped in paper for chemical examination, he also put 20 packets in four plastic bags and sealed on the spot. He also noticed engine number of truck as 3150 whereas its chassis number was 605883, prepared memo. of arrest and recovery in presence of mashirs at the spot. Thereafter accused along with property were brought at P.S, for which the present case was registered on behalf of the state.
3. After registration of the FIR, the Investigating Officer conducted usual investigation, recorded 161, Cr.P.C. statements of PWs, inspected place of incident and submitted challan after concluding the investigation.
4. At the trial, prosecution examined complainant/I.O namely Inspector Hassan Ali Dashti and PW-EC Hussain Bux, who produced numerous documents through their evidence. Thereafter prosecution side was closed.
5. Statements of accused u/S. 342, Cr.P.C. were recorded in which they denied the allegations made against them by the prosecution and they pleaded their innocence. However, they did not examine themselves on oath in terms of Section 340(2), Cr.P.C. to disprove the charge nor examined any witness in their defence. However, appellant Shoukat Hussain produced laboratory test dated 26.2.2014, 22.10.2013 and medical prescription dated 22.5.2013 through his statement u/S. 342, Cr.P.C.
6. After hearing learned counsel for respective parties, learned trial Court convicted and sentenced the appellants as stated supra, hence this appeal.
7. Learned counsel for the appellants has argued that there are contradictions in the evidence of complainant and PW; that it is not established during evidence of complainant and PW-that the recovery was made at the pointation of accused persons; that as per prosecution case, the slabs of charas were printed with mark of Sher-e-Sindh and picture of lion but mashirnama of recovery is silent in this regard; that the receipt regarding handing over the charas to EC Saifullah has not been produced; that EC Saifullah has not been examined; that no entry regarding depositing the case property in the malkhana has been produced; that endorsement and marks available at case property have not been disclosed in the memo. and FIR; that there is delay in issuance of chemical examiner report; that the alleged contraband material has not been recovered from exclusive possession of the appellants; that all the PWs have not been examined by the prosecution and only complainant and PW-Hussain Bux were examined by the trial Court; that the appellant Shoukat Hussain is aged person; that the compliance of Rule 5 and 6 of CNS Act, have been violated; that the prosecution has failed to establish the safe custody of contraband material; that the question regarding safe custody and safe transaction was not put to the appellants in their statements recorded u/S. 342, Cr.P.C.; that there are major as well as material contradictions in the evidence of PWs; that the case of prosecution is full of material contradictions, discrepancies, infirmities, therefore, he prayed that the impugned judgment may be set aside and appellants/accused may be acquitted. In support of his contentions he has referred case law reported as 2020 SCMR 196, 2019 SCMR 1217, 2019 SCMR 1649 and 2018 SCMR 2039.
8. On the other hand learned DPG for the state has fully supported the impugned judgment while arguing that the appellants were arrested on the spot with truck; that huge quantity of charas has been secured from the secret cavity of the truck; that all the formalities were observed by the complainant at the spot; that no enmity or malafide has been alleged or proved by the accused with the complainant party; that no specific plea has been taken by the appellants in their statements u/S. 342, Cr.P.C.; that there are no major contradictions in the evidence of prosecution witnesses; that the appellants have not examined any DW in support of their plea of false implication; that PWs have fully supported the prosecution case; that all the rules of CNS Act, were complied with by the Investigating Officer. He relied upon the case law reported as 2020 SCMR 1222, 2020 SCMR 1000, 2018 P.Cr. L J 1015 and PLD 2013 Sindh 586.
9. We have heard learned counsel for appellants and learned DPG for state and perused the record carefully with their able assistance.
10. After a careful scanning of the evidence of the witnesses, we have found that they have constituted an uninterrupted chain of facts ranging from seizure and forensic analysis of the contraband. They are in comfortable unison on all the salient features regarding interception of the huge quantity of charas as well as all the steps taken subsequently. A total of 100 grams were separated from each packet recovered from the truck as representative sample and subsequently sent to the chemical examiner, which is found by us being exercise more than sufficient to constitute forensic proof. At the time of the arrest, the accused Shoukat Hussain was driver of the truck and from a secret cavity available at back side of driving seat of the truck where appellant Shoukat Hussain was sitting on driving seat, whereas appellant Muhammad Arif was sitting adjacent to him being cleaner of the truck and the secret cavity was found by the complainant party besides the seat of the truck wherefrom 80 kilograms of charas was secured and hence, making the appellant Shoukat Hussain responsible for the same alleged to have been secured from his possession. We have also scanned the report of the chemical examiner available on the record and have also found that it totally corroborates the evidence of the prosecution witnesses, whose stance is in nexus with the chemical examiner’s report. It is a matter of record that charas was secured from the hidden cavity back side of seat of truck where appellant Shoukat Hussain was sitting being driver along with Muhammad Arif who was cleaner of the said truck where from huge quantity of charas has been secured, which was being transported while concealing in the secret cavity of the truck and from therein 100 grams were separated from each of the packet for the chemical examiner, who did not find any tampering with the sealed parcels of the contraband, so secured from the appellants, hence, the report of the chemical examiner received in positive. More so, all the witnesses have testified that the case property available in Court is the same and they were not cross-examined on the said aspect of the case by the defence counsel. According to the departure and arrival entries produced by the complainant at Ex.7-C, they had arrived at the police station along with recovered case property and the accused and the case property was sent on the next day; i.e. 29.12.2015, thus no
delay can be attributed to the same. The case property was sent through E.C Saifullah vide letter No. Excise 44 dated 29.12.2015, available at Ex. 7-D. Such fact has also been fully corroborated by the chemical examiner’s report wherein it was mentioned that “One sealed plastic katta bearing one seal, which contains eighty sealed white paper packets each bearing one seal. Seals perfect and as per copy sent.” Therefore, the contention with regard to safe custody of the property does not have any sanctity as the property viz. charas so recovered from the appellant had been proved adequately by examining the P.Ws, even otherwise, they were not cross-examined on this part. Furthermore, per the chemical examiner’s report, the seals were received in intact condition which rules out any question of tampering and it was in fact the examiner who had broken the seals to open the sealed contents. Reliance in this respect is placed on the judgment passed by Honourable Apex Court, dated 03.03.2020 in Jail Petition No. 712 of 2018 (Re: Zahid and Riaz Ali vs. The State). Resultantly, the charas so recovered from the secret cavity of the truck which was driven by the appellant Shoukat Hussain and such secret cavity was found in backside of his seat where from huge quantity of 80 K.Gs of charas has been secured and same has been established to the extent of realization. As far as the contention of the learned counsel for the appellants that the evidence of PWs is not reliable as the same suffers from material contradictions and inconsistencies, has no force at all until and unless some cogent and reliable evidence is brought on record which may suggest that the appellants are innocent and that their case is false. It is well established proposition of law due to flux of time, in the case of transportation or possession of Narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country, if the case stands proved the approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The Court should consider the entire material as a whole and if it is convinced that the case is proved then conviction should be recorded notwithstanding any procedural defect. Further, the minor discrepancies in the evidence of raiding party do not shake their trustworthiness as expressed by the Honourable Supreme Court in the case of State/ANF v. Muhammad Arshad (2017 SCMR 283).
11. Apart from the above, the defence plea agitated by the appellants that they have been falsely involved as they refused to provide milk to the complainant party and demanded outstanding amount from them appears to be inconsequential as the appellants have not specifically alleged or proved that how much amount was outstanding against the complainant party and how much quantity of milk was provided to which of the member of Excise officials. Furthermore, appellant Shoukat Hussain’s laboratory test reports and medical prescription which pertains to Doctors. Pathalogy Lab near Oasis Hotel, Jhang Road, Muzafargarh and Family Care Clinic Jhang Morr Muzafargarh issued by Doctor “Maqbool Alam, same appears to be bearing no effect on the prosecution case, which has rightly been disbelieved by the learned Trial Court. The appellants miserably failed to establish their defence plea by producing documentary or oral evidence regarding their defence plea. It is an admitted position that the appellants were arrested by the Excise police officials and from the secret cavity of truck which was in the driver’s exclusive possession and control, a huge quantity of 80 K.Gs charas was recovered and it would be sufficient for an ordinary person of prudent mind to realize that such huge quantity of contraband could not be foisted upon the accused. In this respect, we are fortified by the dictum laid down in the judgment dated 08.01.2020 passed by the Honourable Supreme Court in the case of Shazia Bibi v. The State (Jail Petition No. 847 of 2018). With regard, the contention of learned Counsel that the evidence of Excise officials is not trustworthy and that no independent or private person has been cited as witness, therefore, per him the case of the prosecution is doubtful, is concerned, same has no force as such contention raised by learned Counsel could have been considered when the evidence of Excise officials is based upon untruthfulness casting uncertainty, enmity and ambiguity. As far as their testimonies are concerned, there is no, universal rule that evidence of an interested witness per se must be invariably corroborated by independent evidence. If that were the cases, then why would the Courts at all take into account the testimony of interested witness? If no other independent witness is available in the case, it would result in a grave miscourage of justice to insist upon independent corroboration. Excise officials are good witnesses, as any other private witness and their evidence is subject to same standard of proof and the principles of the scrutiny as applicable to any other category of witnesses; in absence of any animus, infirmity or flaw in their evidence, their testimony can be relied upon without demur. In this respect, reliance is placed on the case of Matiullah v. The State (Crl. Petition No. 18 of 2019).
12. As far as the establishment of role and the question of exclusive possession is concerned, it is well established principle of law that the driver of the vehicle in which the contraband is being transported is solely responsible for the same. In this regard, the Hon’ble Apex Court in the case of Hussain Shah and others v. The State (PLD 2020 Supreme Court 132) has held as under:
“3: Hussain Shah appellant was driving the relevant vehicle when it was intercepted and from a secret cavity of that vehicle a huge quantity of narcotic substance had been recovered and subsequently a report’ received from the Chemical Examiner had declared that the recovered substance was Charas. The prosecution witnesses deposing about the alleged recovery ‘were public servants who had no ostensible reason to falsely implicate the said appellant in a case of this nature. The said ivitmsses had made consistent statements fully incriminating the appellant in the alleged offence. Nothing has been brought to our notice which could possibly be used to doubt the veracity of the said witnesses.”
13. In case of Kashif Amir v. The State (PLD 2010 SC 1052) the Hon’able apex Court observed that:
“It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in Section 9(b) of CNS Act that the possession should be an exclusive one and cannot be joint one with two or more persons. Further, when a person is driving the vehicle, he is lncharge of the same and it would be under his control and possession, hence, whatever are details lying in it would be under, his control and possession. Reference in this behalf may be made to the case reported as Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. The State (1988 SCMR 1899) this Court has observed that knowledge and awareness would be attributed to the In charge of the vehicle.”
14. Keeping in view the above position, discussion and circumstances, we are of the opinion that the prosecution has undoubtedly proven the guilt of the appellant Shoukat Hussain beyond shadow of any doubt. The learned counsel for the appellants has failed to point out any material or procedural illegality in the impugned judgment or any infirmity committed by the trial Court while passing the impugned judgment against him. Thus, the captioned criminal jail appeal is dismissed to .his extent.
15. Now coming to the case of the cleaner of the truck Muhammad Arif, it is crucial that his case be discussed separately as his role compared to that of appellant Shoukat Hussain is very different. Appellant Muhammad Arif was the cleaner of the truck from wherein the contraband was recovered. However, a minute perusal of the referred dictum established in the case of Kashif Amir (supra), it is clear that the possession cannot be joint and that the driver of the said vehicle shall be held responsible for the transportation of the same. The recovery of the said narcotics was not on the pointation of the appellant Muhammad Arif and the prosecution has failed to establish that he was in knowledge of the presence of the same. Viewing it under that context, the recovery of narcotics could hardly be connected to him as he was sitting beside the driver as an alleged cleaner, hence his responsibility was not at par with that of the appellant Shoukat Hussain. The prosecution has not led any evidence to show that the appellant Muhammad Arif was conscious of presence of narcotics in the truck while the prosecution was duty bound to do so by providing confidence inspiring evidence against him.
16. Under these circumstances, we are of the view that prosecution has failed to establish the guilt of the appellant Muhammad Arif beyond reasonable shadow of doubt, therefore, we by extending him benefit of the doubt acquit him of the charge. He be released forthwith if not requited in any other custody case.
(A.A.K.) Appeal dismissed
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