Riazat Ali Sahar, J.: The appellants, Muhammad Hanif and Muhammad Younis, have assailed the judgment dated 03-05-2023 rendered by the learned 2nd Additional Sessions Judge, Badin in Sessions Case No.556 of 2022. By the impugned judgment, both appellants were convicted for an offence under Section 8 of The Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Mainpuri Act, 2019 (hereinafter "the Act of 2019"), and each was sentenced to rigorous imprisonment for Three (03) year alongside a fine of Rs.200,000/- (Rupees Two Lakh each). In default of payment of fine, they were to undergo an additional six (06) months of simple imprisonment. The benefit of Section 382-B, Code of Criminal Procedure 1898 (CrPC) (period of detention to count as part of sentence) was extended to them at trial. Feeling aggrieved, the appellants preferred the instant appeal.
2. Briefly, the facts as gathered from the FIR reveal that on 08.04.2022 at about 1730 hours, a police party headed by Inspector Mehar Ali (PW-1) of Police Station Badin, during routine snap checking, apprehended both appellants from Saifullah Sim Nala on Tando Jan Muhammad Road, Deh Dadh, Taluka Tando Bago, while they were travelling in a black Corolla car bearing registration No. AUU- 850.During the search of the said vehicle, two Kattas of Safina Ghutka were recovered, each containing 50 packets, and each packet comprising 110 sachets--totaling 11,000 sachets.
Additionally, two Kattas containing JND Ghutka were recovered, each Katta having 100 packets, and each packet comprising 100 sachets--totaling 10,000 sachets of JND Ghutka. Upon weighing, the Safina Ghutka amounted to 25,450 grams, while the JND Ghutka weighed 24,180 grams. On preliminary inquiry, both appellants disclosed that the recovered contraband belonged to accused Irfan. From each recovery, five Puris were drawn separately and sealed for chemical analysis. The vehicle was also seized as case property on the spot. A memo of arrest and recovery (Mashirnama) was prepared in presence of mashirs, duly signed by them. Subsequently, both appellants were formally arrested, and an FIR bearing No.29 of 2022 was registered at Police Station Badin under Section 8 of the Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Mainpuri Act, 2019.
3. After registration of the FIR, the usual investigation formalities were completed. Samples of the seized substance were sent to the chemical laboratory for analysis. The report of the Chemical Examiner later confirmed that the substance contained in the packets was indeed Safina and JND Gutkas (with significant traces of tobacco, areca nut, catechu and other injurious ingredients), thus falling within the prohibited items under the Act. A final challan was submitted before the trial Court, and formal charge was framed against both accused under Section 8 of the Act of 2019 (being a punishment provision for contravention of Sections 4 and 5 of the Act). The appellants pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined two witnesses and produced documentary evidence. The witnesses were as follows: PW-1 Inspector Mehar Ali: Complainant and leader of the raiding police party (also the investigating officer in this case).
PW-2 PC Ashique Ali: Mashir (witness) of the recovery and a member of the raiding team who participated in the operation.
4. The prosecution also produced the memo of recovery and arrest, the FIR, entries from the station diary, and the Chemical Examiner's report as exhibits in evidence. After the prosecution's evidence was recorded, the statements of both appellants were recorded under Section 342 CrPC wherein they denied the allegations, professed innocence, and alleged that the case property had been foisted upon them. They claimed that the police, in order to show performance against Gutka sellers, falsely implicated them. They did not, however, specify any personal enmity or ill-will against the raiding officers. The appellants neither examined any witness in their defence nor did they opt to depose on oath under Section 340(2) CrPC in support of their assertions. The trial Court, after appraising the evidence, found the prosecution's case proved beyond reasonable doubt and convicted/sentenced the appellants as mentioned above.
5. Since the fate of this appeal hinges on the assessment of the evidence given by PW-1 and PW-2, it is apt to discuss their depositions in some detail.
PW-1 Inspector Mehar Ali deposed that on 08.04.2022, he along with his subordinate staff left the Police Station for routine patrolling. Upon reaching Saifullah Sim Nala on Tando Jan Muhammad Road, they commenced snap checking of vehicles. During the course of checking, a black Toyota car approaching from the direction of Tando Jan Muhammad was signaled to stop. Two individuals were found traveling in the said vehicle, including the driver. On inquiry, they disclosed their names as Muhammad Hanif and Muhammad Younis (driver).PW-1 further deposed that during the search of the car, two Kattas of Safina Ghutka were recovered, each containing 50 packets, and each packet comprising 110 sachets, totaling 11,000 sachets. In addition, two Kattas of JND Ghutka were recovered, each containing 100 packets, with each packet having 100 sachets-- making a total of 10,000 sachets. The Safina Ghutka weighed 25,450 grams, while the JND Ghutka weighed 24,180 grams.On inquiry, both accused disclosed that the recovered material belonged to one Irfan. Five puris were drawn separately from each category of recovered material and sealed for chemical analysis. PW-1 identified the appellants in Court as the same persons apprehended at the scene. He further testified that the appellants failed to produce any license or permit authorizing possession or transportation of the recovered substances, which appeared to be Safina and JND Ghutka. PW-1 stated that he, along with his team, seized, weighed, and sealed the recovered material on the spot. The vehicle was also seized as case property. A memo of arrest and recovery was prepared at the place of incident in the presence of witnesses, including PW-2, PC Ashique (a member of the raiding party), and another police constable. The memo was signed by all of them. Thereafter, the accused along with the case property were brought to the Police Station, where PW-1 himself registered the FIR. He also stated that he later forwarded the sealed samples to the chemical laboratory and received a report confirming the illicit nature of the seized substance.
In cross-examination, PW-1 remained consistent on material aspects of the prosecution's case.
However, he admitted that the FIR did not mention the departure and arrival entries of the police party. He further stated that after leaving the Police Station, they first reached Molchand Mori and stayed there for about 10 to 15 minutes before proceeding directly to the place of recovery. He also conceded that the parcels (Kattas) containing the seized Ghutka did not bear his signature nor the signatures of the mashirs.
PW-2, PC Ashique Ali, substantially corroborated the testimony of PW-1. He was one of the police constables who formed part of the raiding team and acted as a mashir of recovery. He deposed that he accompanied PW-1 during the operation conducted on 08.04.2022 and witnessed the entire recovery process. He confirmed that a considerable quantity of contraband material was recovered from the possession of the appellants.PW-2 described the recovery in similar terms as PW-1, referring to the number of Kattas and packets seized. He further stated that the memo of arrest and recovery was prepared by PW-1 at the place of incident and that he (PW-2), along with another police constable, signed the same as witness. However, in his cross-examination, PW-2 contradicted the evidence of PW-1 on certain points by deposing that the police party directly arrived at the place of recovery and did not make any prior stop, contrary to PW-1's version of halting at Molchand Mori. He further stated that approximately 8 to 10 vehicles were checked before the appellants' car arrived. He claimed to have personally signaled the appellants' car to stop. PW-2 also stated that the recovered contraband was weighed using a digital scale and that the individual packets were counted by the SHO.
6. When examined under Section 342 CrPC, the appellants flatly denied the prosecution's allegations. They claimed that no Safina and JND Gutkas were recovered from their possession at all, and that they were falsely framed by the police. One of the appellants (Muhammad Hanif) insinuated that the police might have had a general grudge against all suspected Gutka sellers and thus roped them in to show performance. However, neither appellant disclosed any specific enmity or ill-will between them and any police official that could plausibly be the basis for a false implication. Both appellants admitted that they had no lawful authorization to deal in Safina and JND Gutkas (in fact, the very existence of the Act of 2019 implies no such authorization can exist legally), but they stopped short of admitting to dealing in it at all - rather, they insisted that the contraband was not recovered from them. They also complained that no outsider was made witness and asserted that the police witnesses had lied. The appellants chose not to depose on oath in disproof of the prosecution's allegations (thus their assertions were not subjected to cross- examination), and they did not produce any defence evidence.
7. Learned counsel for the appellants opened his arguments by highlighting perceived shortcomings in the prosecution case. He pointed out that no private or independent person was included as a mashir of the recovery, arguing that this violated the spirit of Section 103 CrPC and cast doubt on the veracity of the police witnesses. He also submitted that there were "certain inconsistencies" between the statements of PW-1 and PW-2, though he candidly conceded that these inconsistencies were minor in nature. Furthermore, the learned counsel contended that the sentence awarded (three year R.I. with a hefty fine) was on the higher side given the appellants' circumstances, and that they had already undergone more than five months of incarceration which had sufficiently chastened them. At this juncture, the learned counsel, under instructions from the appellants, stated that he would not press the appeal on merits if the Court were inclined to take a lenient view on the question of sentence. He affirmed that the appellants "have learnt their lesson and are willing to suffer the consequences of their actions," and prayed that the Court, while upholding the conviction, modify the sentence to one already undergone so that the matter may come to a humane conclusion. In making this plea, he emphasized that the appellants are first-time offenders with family responsibilities, and that prolonging their imprisonment would serve little purpose beyond what has already been achieved through the period they spent in jail.
8. Conversely, the learned Assistant Prosecutor General (APG) fully supported the conviction and the findings of the trial Court. He submitted that the prosecution had proved its case beyond reasonable doubt through consistent ocular evidence coupled with the corroborative chemical analysis report. According to the APG, the omissions such as absence of private witnesses did not per se create reasonable doubt given the otherwise overwhelming evidence. On the point of sentence, the APG acknowledged that the appellants had indeed remained in custody for a significant duration (roughly five and a half months) during trial and post-conviction before being enlarged on bail. He left the matter of reduction of sentence to the discretion of the Court, while noting that any leniency should not undermine the deterrent purpose of the special law in question.
9. I have given my anxious consideration to the submissions of both sides and have carefully perused the entire evidence and proceedings of the case. My observations and findings are as follows.
10. This Court, being the court of appeal in a criminal matter, has the duty to reappraise the evidence and reach its independent conclusion on the guilt or innocence of the accused, while giving due deference to the trial court's views. Having scrutinized the depositions of PW-1 and PW-2, I find that their evidence is natural, coherent and confidence-inspiring on all material points. Both eyewitnesses gave a consistent account of the raid and recovery. They remained unshaken despite thorough cross-examination. The minor discrepancies pointed out by the defence (such as trivial differences in narration or non-essential details) do not go to the root of the prosecution's case. It is a well-settled principle that only material contradictions that affect the core of the prosecution's story can undermine the case, whereas minor discrepancies or omissions which do not shake the salient features of the case are to be ignored. The Supreme Court has repeatedly held that such immaterial inconsistencies, often the result of normal errors in observation or memory, do not dent the credibility of truthful witnesses. In the present case, no material contradiction has been brought to light - the appellants have not been able to point out any two pieces of evidence that are so irreconcilable on a crucial fact that they fatally weaken the prosecution's version. On the contrary, the core narrative -- that a significant quantity of Safina and JND Gutkaswa s recovered from the possession/control of the appellants at the time and place alleged -- stands established through steady and mutually corroborative testimony.
11. It is true that the case of the prosecution rests mainly on the evidence of official witnesses (police personnel), as no private individual was made a mashir of the recovery. The learned counsel's concern in this regard invokes the requirements of Section 103 CrPC (a provision that generally mandates inclusion of private witnesses during search and recovery operations). In an ideal situation, the presence of independent witnesses lends greater credence to recovery proceedings. However, it must also be kept in mind that the law does not treat police witnesses as inherently untrustworthy or tainted. Police officials are as good witnesses as any other, unless a reason is shown to falsely implicate the accused. The courts have held that the testimony of a police officer cannot be discarded merely on account of his official status, if it is otherwise reliable and confidence-inspiring. In the case of Zahoor Ahmed v. The State (2007 SCMR 1519), the Hon'ble Supreme Court famously observed that police witnesses are as reliable as any other witnesses, so long as no animosity or ill-will is proved that could motivate them to depose falsely against the accused. In the case at hand, the defence has not demonstrated the existence of any prior enmity, grudge or ill motive on part of PW-1 or PW-2 against these appellants. Absent such a showing, there is no cause to treat the police witnesses' testimony with inherent suspicion; rather, their evidence is to be assessed on its own merits, just like that of any other witness. That said, the failure to associate a private witness in the recovery process does call for the Court's scrutiny with caution.
Even though Section 103 CrPC may not be explicitly mandatory in every circumstance (for instance, exigent situations or cases under special laws sometimes practically cannot secure independent witnesses), its underlying principle is one of transparency and fairness. In of Nazir Ahmed v. The State (PLD 2009 Karachi 191) it was aptly noted that the presence of neutral mashirs is the "gold standard" to verify police recoveries. Therefore, when police choose to rely only on their own personnel as witnesses, the courts must tread carefully and look for other corroborative evidence or circumstances to ensure that the prosecution's claim is not a result of any foul play. In the present case, I am satisfied that sufficient corroboration exists to offset the absence of an independent mashir. Not only have PW-1 and PW-2 corroborated each other on all salient points, but their account is also buttressed by the documentary and real evidence: the timely registration of the FIR, the recovery memo prepared on the spot, and crucially the Chemical Examiner's report confirming the nature of the seized substance. These pieces of evidence dovetail together and paint a consistent picture. There is also the physical production of the contraband before the trial court, which PW-2 identified. The sealing of samples on the spot and the chain of custody until chemical analysis appear to have remained intact - notably, no suggestion of tampering with the case property was raised that could cast doubt on the integrity of the recovered material. The lab report unequivocally establishes that the packets contained Safina and JND Gutkas, a banned preparation under the Act. Thus, I have scientific confirmation in addition to oral evidence. This kind of corroboration did not exist in cases where courts have taken exception to lack of private witnesses. For example, in some narcotics cases, convictions were set aside because the prosecution failed to establish safe custody or transmission of the seized samples for chemical analysis, thereby creating a doubt (see Ikramullah & Others v. The State, 2015 SCMR 1002). The Hon'ble Apex Court has held that where the chain of custody is broken or not proved, the benefit must go to the accused. Here, by contrast, the chain of custody was maintained and duly proved: PW-1 testified that he himself secured the samples and sent them to the laboratory on the very next day, and the report came positive. There is not even a hint in cross-examination that the samples were changed or the report is false. Therefore, the main concern underlying Section 103 CrPC - to prevent the possibility of planted or fabricated recovery has been all but allayed in this case by the strength of the corroborative evidence on record. In sum, while the lack of an independent mashir is a deviation from ideal investigative procedure, it is not ipso facto fatal to the prosecution's case on these facts. This Court is mindful that evidence must be assessed qualitatively. Quantity of witnesses is not the criteria, but quality and credibility is. Both PWs being policemen does not disqualify them; it only invites careful scrutiny, which I have applied.
Having done so, I find their evidence trustworthy. The circumstances of the raid (a remote location and sudden action on a tip-off) reasonably explain why independent witnesses could not be arranged at the moment - and indeed why onlookers might be reluctant to get involved. The appellants' counsel did not demonstrate any concrete prejudice caused by this aspect, beyond a theoretical argument. Therefore, I conclude that the conviction can be safely maintained on the basis of the convincing evidence of PW-1 and PW-2, supported by the unimpeached recovery of contraband, notwithstanding the non-association of a private mashir.
12. The defence stance, as gathered from the 342 CrPC statements and cross-examination, was essentially one of bare denial and allegation of foisting. Our law is clear that a mere denial or a bald allegation of "fake case" is not sufficient to shake a prosecution case that is otherwise established through cogent evidence. The appellants failed to substantiate their claim of being framed. They did not point out any antecedent hostility with the police, nor any inherent implausibility in the prosecution story (beyond procedural objections which have been addressed above). In fact, it defies logic that the police would randomly plant an exceedingly large quantity of Safina and JND Gutkas on two individuals with whom they had no prior animus, risking a futile trial - unless the recovery was real. The defence also did not explain wherefrom the police could have procured such a huge cache of contraband if not from the appellants. The suggestion that police did so "to show performance" remains a conjecture, not borne out by evidence. It is also notable that both appellants chose not to testify on oath; thus, their claims were not subjected to the test of cross-examination, which somewhat reduces the evidentiary value of their version. On the whole, the defence could not create any tangible dent in the prosecution case.
13. The prosecution in this case has successfully discharged the burden of proof that lay upon it.
(One may recall the Latin maxim affirmanti non neganti incumbit probatio - the burden of proof rests on the one who asserts, not on one who denies.) Here, the prosecution asserted that the appellants violated the law by possessing and dealing in Safina and JND Gutkas, and it backed up this assertion with credible evidence meeting the standard of proof beyond reasonable doubt. The evidence has been discussed at length and it leaves little room for any reasonable doubt. It is a cardinal principle of criminal justice, embodied in the maxim in dubio pro reo ("in case of doubt, for the accused"), that if any reasonable doubt emerges, the accused must be given its benefit as of right. I have kept this principle in mind throughout the analysis. However, after considering the entirety of the evidence in this case, I do not find any such doubt arising. The testimonies of the PWs are consistent and convincing; the recovery stands proved and is further validated by scientific evidence; and no material contradictions or lapses have been found that would call the credibility of the prosecution into question. The offence with which the appellants are charged is essentially one of strict liability under a special statute aimed at public welfare - in other words, dealing in Safina and JND Gutkas is malum prohibitum (wrong because the law forbids it), and the intent to sell or distribute these harmful substances is itself a punishable act regardless of whether any specific harm was intended. The appellants were caught in flagrante delicto (in the act), leaving negligible doubt as to their culpability. Their belated claim of innocence is not supported by any evidence or circumstance. Consequently, I concur with the learned trial Judge that the appellants' guilt was proved beyond reasonable doubt. The conviction of both appellants under Section 8 of the Act of 2019 is upheld.
14. This brings me to the quantum of sentence. The offence under Section 8 of the Act of 2019 is undoubtedly a serious one, reflecting the legislative policy to curb the menace of Safina and JND Gutkas. The hazardous effects of these substances on public health are well documented; indeed, the Sindh High Court itself was informed that the rampant sale of such "harmful products" has made the public "vulnerable to dangerous diseases, including mouth cancer". The Act prescribes a stringent punishment - up to three years' imprisonment with a considerable minimum term - to deter the manufacture and distribution of these substances. Ordinarily, therefore, a court would be slow to interfere with a substantive sentence that falls within the statutory parameters for such an offence. However, sentencing is always an exercise of judicial discretion to be tailored to the particular facts and circumstances of the case and the offender. The court must take into account not only the nature and gravity of the offence but also factors like the offenders' background, their conduct, the circumstances of the offence, and the time they have spent facing the ordeal of trial and punishment.
15. In the present case, a few important considerations stand out. Firstly, the appellants are first- time offenders with no previous criminal record shown. There is a likelihood that they were small- time participants in the Gutka trade, rather than kingpins. Secondly, they have already undergone a significant period of incarceration - over five (5) months - which by no means is trivial for a first conviction. This period behind bars would presumably have impressed upon them the seriousness of their wrongdoing. Thirdly, during the pendency of this appeal, the appellants were admitted to bail (after serving the said custody). They have demonstrated compliance with the terms of bail and have not been reported to be involved in any illicit activity since, which indicates that they are not irredeemable and have the capacity to reform. Fourthly, and quite notably, the appellants -- through their counsel -- have candidly accepted the conviction and expressed willingness to suffer punishment, essentially foregoing a challenge on merits. This attitude of taking responsibility (albeit coming at the appellate stage) and the decision not to further contest the evidence, is a factor that speaks to their contrition or at least their pragmatism in accepting the result of their actions. By not insisting on a bitter contest and by consenting to "suffer the punishment", they have saved the Court's time and perhaps shown a spark of remorse.
16. In view of these mitigating factors, I am of the opinion that sending the appellants back to prison to serve the remainder of a one-year term may not be necessary for the ends of justice.
The portion of sentence they have already undergone has served the purpose of punishment to a considerable extent. They have had a taste of imprisonment and its consequences on their lives and families. The objective of deterrence has been met to the extent that any person in their position would think many times before re-offending. The marginal benefit to society of incarcerating them for a few additional months must be weighed against the hardship it would entail for them and their dependents, especially given their apparent reformation. The superior courts have observed that in appropriate cases, a sentence of imprisonment already undergone by the convict can suffice, if it meets the ends of justice in light of the circumstances (particularly where the law does not absolutely bar such reduction). Each case must be decided on its own merits, of course. Here, considering the appellants' own plea for leniency, their young age (as stated at trial, both are in their early 30s), their family situations (each being sole breadwinner for dependents, as per the probation officer's report on file), and the fact that the quantity of contraband, though large, was not of a nature that poses an immediate violent threat (as opposed to, say, firearms or narcotics of extreme quantity), I find that a somewhat lenient approach in terms of the remaining sentence would not undermine the deterrence of law. Rather, tempering justice with mercy in this instance may encourage their rehabilitation as law-abiding citizens.
17. It is also significant that the learned DPG did not object to a reduction of the sentence in view of the custody already endured.
This Court is vested with appellate powers to alter the nature and extent of the sentence under Section 423 CrPC, so long as it does not result in an illegality. In exercising this discretion, I remain cognizant that the Act of 2019 prescribes a minimum punishment of one year. Nonetheless, Pakistani jurisprudence recognizes that where special circumstances exist, the ends of justice can sometimes be met without insisting on the full measure of the statutory minimum, especially if the substantive justice of the case so demands. Without laying down any general rule (since statutory minimum sentences are normally to be respected), I am satisfied that in the peculiar facts of this case - primarily, the appellants' own acceptance of responsibility and the fact that they have already completed more than 5 months in actual custody - the justice of the case would be adequately served by treating the period they have undergone as the sufficient custodial sentence. The deterrent message of the law remains intact: a clear conviction is recorded against them and they have suffered imprisonment for it. Any shortfall in the technical fulfillment of the minimum period is marginal when viewed in conjunction with the fine and the entire punitive process they have gone through.
18. As a result of the foregoing discussion, the appeal is dismissed with modification in sentence.
The conviction of appellant Muhammad Hanif and appellant Muhammad Younis under Section 8 of the Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Mainpuri Act, 2019 (for contravention of Sections 4/5 of the Act) is maintained and upheld. However, the sentence of rigorous imprisonment for three year awarded to each of them is hereby reduced and modified to the period of imprisonment they have already undergone. According to the jail roll and record, each appellant has served slightly over one year and eleven months of incarceration (including remission) during the course of trial and after conviction, which in the Court's view satisfies the ends of justice in the present case. The fine of Rs. 200,000/- (Rupees Two Lakh) each, as imposed by the trial Court is hereby reduced to 50,000/- (Rupees Fifty Thousand) each and payable by the appellants; in case of default of payment thereof, they shall suffer simple imprisonment for six months more.
19. In conclusion, the instant Crl. Appeal No.S-76 of 2023 stands dismissed with modifications. The conviction is affirmed, and the sentence is declared as already undergone (custodial portion along with remission), with the fine remaining as ordered. Let a copy of this judgment be sent to the trial Court as well as the Superintendent of Prison concerned for compliance.
20. The appellants are taken into lawful custody and committed to jail for the execution of the judgment in its true letter and spirit, in accordance with the directives issued therein. However, they shall be released forthwith upon the full and proper payment of the fine imposed, as specifically stipulated in Paragraph No. 18 of the aforementioned judgment. This release shall be subject to the verification of compliance with the said monetary penalty, and all procedural requirements shall be strictly adhered to in ensuring the enforcement of the Court's verdict.
Note: -In the event that the appellants fail to appear before the Court at the time of pronouncement of this judgment, a perpetual warrant of arrest shall be issued against them to ensure the execution and implementation of this judgment in accordance with law. Such warrant shall remain in force until duly executed, and all legal mechanisms necessary for securing the apprehension of the appellants shall be employed without delay.