GULZAR AHMED, this appeal, the appellants have challenged the judgment dated 7-4-2009 passed by the learned Special Judge CNS, Thatta by which they have been convicted under section 9(c)
Control of Narcotic Substances Act, 1997 (the Act) and sentenced to R.I. For ten years each and to pay fine of Rs. 50000 each, in default whereof to suffer S.I. Of six months more with benefit of section 382-B, Cr.P.C.
2. Mr. Mehmood A. Qureshi, learned counsel for the appellants has contended that none of the passengers and crew of the van were examined and they ought to have examined even if the provision of section 103, Cr.P.C. Was not applicable. He further contended that the names of the passengers and the crew are not disclosed and no plausible explanation is given for such omission. He further contended that section 25 of the Act does not authorize the police officer to exclude the independent witnesses. He further contended that 5 kgs charas cannot be kept in a folder of shalwar. He has also contended the Ellahi Bux, the 1.0. Is dishonest as he has admitted that he did not conduct investigation. He further contended that samples of recovered charas were sent for chemical examination after nine days delay and no explanation is given for such delay. He has contended that the samples were taken to the Chemical Examiner by Razzak, who has not been examined. He has contended that there is no explanation as to where the case property was kept from 6th to 8th March 2008 and contended that prosecution has failed to discharge its burden. He has further contended that there is no entry of presence of P.W.2 at picket/check post and the prosecution and defence evidence is to be examined in juxtaposition. In support of his submissions he has relied upon the cases of NAZEER AHMED V. THE STATE (PLD 2009 Karachi 191), KHAN BACHA V. THE STATE (PLD 2006 Karachi 698), YAMEEN KUMHAR V. THE STATE (PLD 1990 Karachi 275), STATE THROUGH ADVOCATE-GENERAL, SINDH V. BASHIR AND OTHERS (PLD 1997 SC 408), SHAUKAT ALI V. THE STATE (2004 YLR 356), MUHAMMAD SHARIF V. THE STATE (1998 PCr.LJ 1293) MST.
SHABANA RIYASAT V. THE STATE (PLD 2006 Karachi 325); ALI HASSAN V. THE STATE (PLD 2001 Karachi 369), S. MAHMOOD ALAM SHAH V. THE STATE (PLD 1987 SC 250), UMER REHMAN V. THE STATE (PLD 2009 Karachi 284), ASHIQ HUSSAIN ALIAS MUHAMMAD ASHRAF V. THE STATE (PLD 1994 SC 879), KHALID JAVED AND ANOTHER V. THE STATE (2003 SCMR 1419), MUHAMMAD SHAH V. THE STATE (2010 SCMR 1009) and (1995 SCMR 1345). As an alternative he has relied upon the case of NIAZ-UD-DIN V. THE STATE (2007 SCMR 206) and order dated 24-12-2008 in Criminal Petition No.103-K of 2008 passed by Hon'ble Supreme Court of Pakistan.
3. Mr. Khadim Hussain, learned D.P.-G., on the other hand, has contend that all the prosecution witnesses have supported the prosecution case and the Chemical Examiner's report is in positive and that there is no delay in sending the samples to the Chemical Examiner and compliance of rule in this respect is made. He has further contended that there is no suggestion of tampering of recovered property from the side of the appellants and that the application of section 103, Cr.P.C. Is totally excluded in the case under the Act. He has further contended that there is no contradiction in the evidence of prosecution witnesses. There is no enmity between the complainant party and the appellants and no innocent person will be involved in the crime. As regards alternative plea, learned DPG contended that such plea is not available to appellants as matter has been argued on merits. He, however, contended that sentence can be reduced to seven years. In support of his submissions he has relied upon the cases of SARFRAZ GUL V. THE STATE (PLD 2004 SC 334) and MUHAMMAD MUSHTAQ AND ANOTHER V. THE STATE (2008 SCMR 742).
4. We have considered the submissions made by learned counsel and have gone through the record.
5. The facts of the matter are that on 6-3-2008 Noouruddin Brohi SIP/SHO, Police Station Dhabeji left the Police Station with HC Abdul Sattar, PC Abdul Khalique and PC Muhammad Ayoob in Government vehicle No. SP-4413 along with driver PC Mola Bux vide Daily Diary Entry No.13 at 1230 hour for patrolling at check post Dhabeji where ASI Muhammad Younus Tanoli, Incharge of check post together with PC Altaf Hussain and PC Kajal Khan were present on duty. On the orders of higher officers they started checking the vehicles. During the checking at about 1310 yours a passenger van No. R-0968 coming from Karachi for Badin stopped and its passengers were asked to alight from the van for checking purposes and they were checked with the help of staff. Charas was recovered from the two persons from the folders of their shalwars. From the one persons 2 and 3 bundle of Khaki colour were found from his shalwar and from the other person 2 bundles of khaki colour and 3 bundles of Khaki colour were found from the fold of his shalwar which was opened and found to be containing charas wrapped in red colour plastic. One of the persons disclosed his name as Iqbal Shah son of Sachal and the second person disclosed his name as Manzoor Ali son of Bux Ali. Two notes of Rs. 100 were recovered from the Iqbal Shah and four notes of Rs.50 were recovered from Manzoor Ali. On weighing the recovered charas from Iqbal Shah it was 5 kgs and the charas recovered from Manzoor Ali was also 5 Kg. Out of recovered charas 5/5 rods of 50/50 grams were separately sealed for chemical examination and remaining charas 5/5 bundles and cash was sealed separately. Mashirnama of arrest and recovery was prepared which was signed by ASI Muhammad Younus Tanoli and HC Abdul Sattar. Thereafter the arrested accused and the case property were brought to Police Station where the F.I.R. Was lodged.
6. The case was sent up for trial, charge was framed against the appellants who pleaded not guilty and claimed to be tried. Prosecution produced three witnesses namely complainant Nooruddin Brohi as P.W.1, Mashir Muhammad Younus Tanoli as P.W.2 and I.O. Ellahi Bux as P.W.3. They were cross-examined by the appellants' counsel. Thereafter statements under section 342, Cr.P.C. Of both the appellants were recorded. Both the appellants in their such statements stated that they will examine themselves on oath and also to produce defence witnesses. The appellants, however, did not examine themselves on oath' but produced Abdul Majeed as D.W.1 and Fateh Muhammad as D.W.2. On hearing the Advocates for the parties the impugned judgment was passed by the learned trial Court convicting and sentencing the appellants as noted above.
7. P.W.1, Noouruddin in his evidence has stated that on 6-3-2008 he was posted at Dhabeji Police Station and on that date he along with ' HC Abdul Sattar, PC Abdul Khalique, PC Muhammad Ayoob left the Police Station for patrolling in Government mobile vide Roznamcha Entry No. 13 at 1230 hours and produced the departure entry as Exh.5/A. He has stated that they reached the check post Dhabeji where its Incharge Muhammad Younus Tanoli, PC Altaf Hussain and PC Kajal Khan were present and on orders of superiors they started checking the vehicles. During checking one van No. R-0968 was coming from Karachi to Badin which was stopped and its passengers were asked to get down and then they were checked one by one. During checking of one passenger they recovered 3 bundles from backside of his fold of his shalwar while two bundles were recovered from his front side fold of shaiwar. Bundles were opened and checked there were rods of charas wrapped with red plastic paper. On enquiry this passenger disclosed his name as Iqbal son of Bachal Shah. From another person they recovered three bundles from backside fold of his shaiwar and two bundles from front fold of his shalwar which also contained charas and he was identified as Manzoor Ali son of Bux Ali. On personal search of Iqbal Shah Rs. 200 (two currency notes of Rs. 100) were recovered from side pocket of shaiwar. On personal search of Manzoor Ali Rs.
200 (four notes of Rs. 50) were recovered from front pocket of his shirt. The charas recovered from Iqbal Shah was weighed which was 5 kgs. Out of which one rod from each bundle was taken out weighing 50 grams and sealed separetly for chemical examination. The recovered charas from Manzoor Ali was also of 5 kgs. Out of which one rod of charas from each bundle was taken out weighing 50 grams and sealed separately for chemical examination. The remaining charas and cash of each accused was sealed separately. The witness prepared the Mashirnama of arrest and recovery at spot in presence of Mashirs ASI Muhammad Younus and HC Abdul Sattar, which he produced as Exh.5/B. He further stated that thereafter the arrested accused and case property was brought to the Police Station Dhabeji where F.I.R. Was lodged under section 9(c) of the Act which lie produced as Exh.5/C. He also produced arrival entry No.20 as Exh.51D. He further stated that thereafter the custody of accused and recovered case property and case paper were handed over to SIO Ellahi Bux for further investigation. This witness was cross-examined by counsel for the appellants and stated that there were 8/9 passengers in the van and there were conductor and driver in the van. He stated that he has enquired the names of driver and conductor but he does not remember their names and he has also not mentioned in the F.I.R. Or Mashirnama that he has enquired the names of driver and conductor. He further stated that he had enquired the names of other passengers but has not mentioned in the F.I.R. And Mashirnama that he has enquired the names of other passengers. The suggestion that the bundle of charas cannot be kept in the fold of shalwar was denied. He denied the suggestion that charas was recovered from two Afghanies from the same van and denied that there was exchange of hot words with the appellants on account of their laziness in getting down from the van. He has stated that he has asked the passengers to act as Mashirs but they refused and admitted the suggestions that he did not give any notice and did not mention in the Mashirnama and F.I.R. That he asked the passengers to act as Mashirs. He denied the suggestion that the case property shown to him is not charas and denied the suggestion that charas was recovered from Afghanies who were let off and denied the suggestion that nothing was recovered from the possession of appellants and denied the suggestion that property has been foisted upon the appellants due to exchange of hot words.
8. P.W.2 in his examination-in-chief narrated the same story as given by P.W.1 Nooruddin. In cross- examination he stated that there were about 16/17 passengers in the van including the driver and conductor and cannot say that the name of driver was Abdul Majeed and Fateh Muhammad and Abdul Hameed were present in the van. He stated that private persons were not asked to act as Mashirs. He denied the suggestion that two Afghanies were arrested from the said van and also denied the suggestion that the case property was recovered from Afghanis and also denied the suggestion that there was exchange of hot words between appellants and police party and that the appellants have been falsely implicated while the real culprits Afghanies have been let of and denied the suggestion that charas has been foisted upon the appellants and denied the suggestion that nothing was recovered from the appellants. He denied the suggestion that the case property present in Court is not charas.
9. P.W.3, Ellahi Bux in his evidence stated that on 6-3-2008 he was posted as SIO at Police Station Dhabeji on which date SHO Nooruddin handed over to him the appellants, recovered case property and relevant documents of the case for further investigation. He investigated the matter, recorded the statements of witnesses under section 161, Cr.P.C. And sent the samples for chemical examination and produced the chemical report as Exh.8/A which is positive. In cross-examination he stated that sample was sent to laboratory 5/6 days after the date of arrest and recovery. He admitted that according to date of receipt in the office of Chemical Examiner there is delay of nine days. He stated that property remained in Malkhana/Property Room from 8-3-2008 to 15-3-2008 and he himself deposited the same in Malkhana after showing it to DPO. He stated that he has not investigated the alleged case property was recovered from the possession of appellants or not. He stated that statements of witnesses were recorded under section 161, Cr.P.C. At Police Station. He stated that he does not know that SHO Nooruddin had arrested two Afghanies and recovered the case property from them and after receiving the money from them and let them of and foisted the property on the present appellants. He stated that he is deposing on the basis of the material and the relevant papers available with him received from SHO and as per papers he is deposing that the property was recovered from the appellants. He denied the suggestion that he is deposing falsely at the instance of SHO.
10. The appellant No. 1, Iqbal Shah in his statement under section 342, Cr.P.C. Has taken the following defence:-- Answer to Question No. 7.
I am innocent. On 6-3-2008, I boarded in the van from Qaidabad for Ziarat of Shah Aqiq when van reached Dhabeji check post police were already checking the vehicles. Our van was also stopped.
20/22 persons were travelling in the van. Two Afghanies looking persons got down from the van from whom police recovered charas in our presence and the presence of driver and passengers.
As we getting down the police used harsh words as to why we are coming down with laziness. On my refusal they became annoyed. The police forcibly pushed me and another passenger in the mobile. Two Afghanies from whom charas was recovered, they were also got seated in the mobile.
We were taken to Police Station. On next day I came to know that false narcotics case was registered against me. No recovery of charas was effected from me. Charas has been foisted upon me. I am innocent, I pray for justice.
11. Appellant No. 2 in his statement under section 342, Cr.P.C. Also stated that he is innocent and adopted the plea of appellant No.1 except that he was going to the Shrine of Abdullah Shah Ashabi.
12. D.W.1, Abdul Majeed in his evidence has stated that he was the driver of the van from Quaidabad to Badin. On 6-3-2008 he was coming to Badin from Karachi with 20/22 passengers on board.
When they reached at Dhabeji post one mobile was standing there and police asked him to stop.
On parking the van he got down from it and the police asked the vehicle and passengers to be checked. Whereafter, the passengers were got down from the vehicle but police party dragged two of the passengers therefore, there was exchange of hot words between police and two passengers.
They also maltreated two Afghanies who were also travelling in the same van and two Afghanies and two passengers made to sit on the ground. Police secured 3/4 bundles of charas from.
Afghanies. The police apprehended four persons and they were taken in the mobile. No charas was recovered from the accused in his presence and they were forcibly pushed in the mobile and taken away by the police. In cross-examination this witness stated that proprietor of the van Seth Amjad asked him to go to the Court for evidence.
13. D.W.2, Fateh Muhammad in his evidence has stated that on 6-3-2008 he was coming to Thatta with his family to Dargah Abdullah Shah Ashabi for Ziarat in the van. About 20/22 passengers were travelling in the van. Police stopped the van at Dhabeji police check post. All passengers got down on the direction of police out of whom two Afghanies and two other passengers, who are present in Court, were taken by the police in the mobile. The police secured 2/3 bundles from Afghanies but he cannot say what was in the bundles and two Afghanis and two accused were taken by the police in the mobile. He stated that in his presence nothing was secured from the accused but the police were saying that they will see and check them afterwards. In cross-examination this witness has stated that driver of van Abdul Majeed Rind is my caste fellow and also live in the same locality and that he has come to the Court for giving evidence on asking of driver Abdul Majeed Rind.
14. On perusal of the evidence, one fact becomes apparent that the incident of recovery of charas is not disputed and denied by the appellants. Their only plea is that charas was recovered from two Afghanies, who were travelling in the same van and because the appellants had exchanged hot words with the police on account of laziness in coming out of the van, the charas was foisted upon them. The suggestion of recovery of charas from two Afghanies was denied by the P.Ws. 1 and 2 and they also denied the fact that chars was foisted upon the appellants because of exchange of hot words with the police. Both the prosecution witnesses in their evidence have given account of incident of recovery of charas from the appellants and their evidence on close scrutiny seem to be natural and complementing each 'other with no amount of material contradiction in them.
Although it was argued by the counsel for the appellants that the police officials ought to have examined public witnesses, in our view, in the first place the examination of private persons is not the requirement of law in terms of section 25 of the Act and time and again it has been held by the Superior Courts that reluctance on the part of general public to become witness in such like cases has by now become judicially recognized fact and there is no option left but to consider the statement of official witnesses as no legal bar has been imposed in this regard. Police officials are as good witnesses and they could be relied upon if their testimony remained unshattered during cross-examination. Reference in this regard is made to the case of MUHAMMAD NAEEM ALIAS NAEEMA V. THE STATE (1992 SCMR 1617), MUHAMMAD V. THE STATE (PLD 1981 SC 635), SHOUKAT KHAN V. THE STATE (2003 PCr.LJ 324) AND MUHAMMAD AZAM V. STATE (PLD 1996 SC 67).
15. By virtue of application of provision of section 25 of the Act, the application of provision of section 103, Cr.P.C. Has been excluded and thus the argument of learned counsel for the appellants has no force regarding non-examination of public witnesses for that Act does not require examining of public witnesses in CNS cases. Reference in this regard is also made to the case of MUHAMMAD MUSHTAQ and ANOTHER V. THE STATE (2008 SCMR 742).
16. As regards the next submission of learned counsel for the appellants that 5 Kg charas could not be kept in fold of shalwar, we are ,altogether not impressed by such argument for that P.Ws. 1 and 2 in their evidence have consistently stated that 5 Kg charas each were recovered from the fold of shalwar of each of appellants and the suggestion made to P.W.1 that 5 kg. Charas could not be kept in fold of shalwar was denied by this witness. It was not demonstrated by the defence as to how 5 packets of 1 Kg charas each could not have been kept in fold of shalwar by the appellants.
17. As regards the next submission of counsel for the appellants that P.W.3 Ellahi Bux has given dishonest evidence, we have minutely examined the evidence of this witness and have noted that this witness has spoken truth when he has stated that he has relied upon the papers, relevant documents and recovered property provided by the complainant, the SHO and that he has not conducted his own independent investigation to ascertain as to whether property was recovered from the appellants. He admitted in cross-examination the suggestion that statement under section 161, Cr.P.C. Was recorded at Police Station. This witness apparently has said nothing to label him as dishonest.
18. As regards next submission of learned counsel for appellants that the samples were sent with delay of nine days without explanation and that Razzak, who has carried the sample to Chemical Examiner, has not been examined and there is no explanation of safe keeping of case property from 6th to 8th March 2008, it may be noted that P.W.3 in his cross-examination has stated that he has received the case property from complainant on 6-3-2008 and he deposited the same in Malkhana on 8-3-2008 which remained there till 15-3-2008 on which date it was sent to Chemical Examiner. Learned D.P.-G. Has contended that 6-3-2008 the date on which recovery was made was Thursday and 7-3-2008 being Friday and half-working day, perhaps the case property could not be deposited by the I.O. In Malkhana which he ultimately deposited on 8-3-2008 and remained there till 15-3-2008 on which date it was sent to Chemical Examiner. He contended that in the first place there is no suggestion of tampering with the samples and secondly the rule of sending the sample to Chemical Examiner as provided in Control of Narcotic Substances (Government Analysts) Rules, 2001 does not override the substantive law and delay in sending the sample to Chemical Examiner cannot vitiate the proceedings. We have noted that the samples were sent to Chemical Examiner on 15-3-2008, who has given report stating that the sample was that of charas.
It has already been noted above that the recovery of charas is not disputed and therefore delay without any suggestion of tampering with the samples per se will not be sufficient to make the report of Chemical Examiner unreliable. Reference in this regard is made to the case of ALI MUHAMMAD V. THE STATE (2003 SCMR 54) and TARIQ MEHMOOD V. THE STATE (PLD 2009 SC 39).
19. We have considered the evidence of both, the prosecution as well as that of defence and put them in juxtaposition and were persuaded to believe the prosecution story of recovery of charas from the appellant for that the evidence of prosecution witnesses was confidence inspiring and believable and their statements did not suffer from any legal infirmity, material contradictions or discrepancies or dishonest improvements. The prosecution witnesses had no enmity to involve the appellants in false case or falsely assign them the role. It is well established law that no innocent persons can be assigned a role which is I not committed by him.
20. After thorough examination of evidence and law, we are satisfied that appellants have rightly been found to have committed offence in terms of section 9(c) of the Act.
21. Counsel for the appellants has sought reduction in sentence but we are unable to find any mitigating circumstances on the basis of which reduction in sentence can be made.
22. After hearing the counsel for the parties at length, through short order dated 3-12-2010 this appeal was dismissed. Above are the reasons for the same.