H.B.T./60/Q 2011 M L D 1819
[Quetta]
Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ
Haji ABDUL RAHIM ---Appellant
Vers us
THE STATE ---Respondent
Criminal Appeal No.119 of 2010, decided on 11th August, 2011.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c), 20, 21 & 29 ---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 &
4---West Paki stan Arms Ordinance (XX of 1965), S.13(e) ---Possessing narcotics, prohibition
of manufacturing and owning intoxicant and possessing unlicensed arms ---Appreciation of
evidence ---Raid was conducted at odd hours of the night at about 10 -15 P.M., there was no
possibility of availing search warrants as emergency for the raid was mentioned in the F.I.R. -
--Even otherwise S.21 of Control of Narcotic Substances Act, 1997, had empowered the
officer to enter, search and arrest without warrants; and S.20 of the Act bei ng directory in
nature, its non -compliance could not be considered a strong ground for holding that the trial
of accused was bad in the eye of law ---Prosecution witnesses had throughout remained
consistent and no contradictions were noticed in their statem ents with regard to the recovery
of opium from the Baitak in presence and possession of accused ---Presumption under S.29 of
Control of Narcotic Substances Act, 1997, was that unless the contrary was proved, accused
would be considered to have committed off ence under the Act in respect of contraband ---
Accused, in the present case, had failed to rebut said presumption ---Defence, during the trial
was wavering and was not consistent in its plea ---Objection of the counsel for accused on the
analysis report was also vague as the report was issued by Federal Government Analyst, who
had received sealed parcel of suspected material ---Charge against accused was not defective
as urged by accused and no error or illegality was found in the same ---Accused had failed to
substantiate his plea that he had any dispute/quarrel with or had enmity with Officer of Anti -
Narcotic Force ---Defence plea proved to be sham and baseless and there was no possibility
of false implication or foisting the contraband ---Prosecution, in circum stances, had proved its
case against accused up to the hilt with regard to recovery of 15.500 Kgs opium ---Conviction
awarded to accused by the Trial Court was based on proper appreciation of evidence on
record and no reason existed to interfere in the same .
2001 SCMR 36 rel.
2009 PCr.LJ 1270 and 2002 MLD 1198 distinguished .
(b) Criminal Procedure Code (V of 1898) ---
----S. 221 ---Charge ---Object ---Object of the charge was to enable accused to know the
precise accusation against him, which he was re quired to meet before evidence was adduced
by the prosecution against him.
Muhammad Riaz Ahmed for Appellant.
Shaukat Rakhshani, Spl: Prosecutor A.N.F. for Respondent.
Date of hearing: 9th August, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This appe al is directed against the judgment
dated 11 -5-2010 passed by Special Judge CNS Balochistan Quetta, whereby appellant has
been awarded conviction under section 9 -C of CNS Act, 1997 to suffer life imprisonment
and to pay fine of Rs.100,000, in default to fu rther suffer one year's S.I. with benefit of 382,
Cr.P.C.
Brief facts of the prosecution case are that on the basis of Marasila Exh.P/2 dated 30 -
8-2008 sent by P.W.2 Capt. Shehzad Younas, F.I.R. No.19 of 2008 was lodged on 30 -8-2008
against the appellant/ convict under section 9 -C of CNS Act, 1997, r/w sections 3, 4 of the
Prohibition (Enforcement of Hadd) Order 1979 and 13 -E of the Arms Ordinance 1965,
reporting therein that on 30 -8-2008 special informer informed Force Commander ANF that
Abdul Rahim Jatta k appellant/ convict will hand over huge quantity of Narcotics to his
customer at any time in the night from the Baitak of his house at Satellite Town and if timely
action is taken narcotics can be recovered. On this information a raid party was constitute d
and the Baitak of the house was besieged at 22.15 Night and on the pointation of the special
informer the raiding party entered in the Baitak of the house, wherein the accused -appellant
was present, who was overpowered. On search of Baitak in a corner on e plastic bag was
found, which was opened in the presence of witnesses, wherein four envelops were found
containing wet opium, each envelop was weighing 3.875 Kg, total weight of the opium was
15.5 Kg. From all the four envelops, 4/4 grams of wet opium tot al weighing 16 grams was
taken out as sample for analysis and parcel No.1 was prepared and remaining opium was
sealed in parcel No.2. On further search of the Baitak, one carton containing 22 tins of beer
were recovered and one Kalashnikov No.BA9995 with m agazines and 72 live cartridges were
recovered. One tin of beer was separated for analysis in parcel No.3 and remaining 21 tins of
beer were sealed in parcel No.4.
After registration of F.I.R., investigation was conducted, statements of witnesses were
recorded, site map was prepared, after availing report of analysis, the appellant was
challaned along with his brother Dad Muhammad alias Dadoo and absconding accused Abdul
Rehman under section 9 -C of CNS 1997 before the court of Special Judge CNS Qeutta. The
appellant -convict was separately challaned under section 13 -E of Arms Ordinance, 1965 and
under sections 3, 4 of Prohibition (Enforcement of Hadd) Order, 1979. On 29 -12-2008 the
brother of the appellant/convict co -accused Dad Muhammad alias Dadoo sur rendered
himself before the trial court with application under section 498 Cr.P.C. The interim bail was
subsequently confirmed in his favour on 21 -2-2009 and subsequently supplementary challan
was submitted to the extent of Dad Muhammad alias Dadoo, who fi led application under
section 265 -K, Cr.P.C., which was allowed and he was acquitted of the charge by Special
Judge CNS Quetta vide order dated 14 -5-2009. Perpetual warrants of arrest were issued
against absconding co -accused Abdul Rehman.
At the trial charge was denied by the appellant/convict on 14 -5-2009. The
prosecution produced P.W.1 Major Sajid Sharif, attesting witnesses of recovery memo
Exh.P/1, P.W.2 Captain Shehzad Younas, complainant, who produced Marasila Exh.P/2 and
P.W.3 S. -I. Hayat Shah, Investigating Officer, who produced site map, analysis report, F.I.R.
No.19 of 2008 and challans. After completion of prosecution evidence the appellant was
examined under section 342, Cr.P.C. The appellant also recorded his statement on oath
under section 340(2), Cr.P.C. and also produced Muhammad Ashraf as defense witness. On
conclusion of trial the appellant was awarded conviction by the learned trial court as
mentioned above.
While challenging conviction Mr. Muhammad Riaz Ahmed, Advocat e assisted by Mr.
Wasay Tareen, Advocate for appellant/convict, argued that charge is contradictory to record,
ownership of the house has not been proved by the prosecution through oral or documentary
evidence, the alleged contraband has not been recovered from the exclusive possession of
appellant/convict, the defence plea has not been properly appreciated by the trial court, no
search warrant was obtained before raid despite having sufficient available time and no
reasonings have been offered for not avai ling the search warrants, the analysis report is not
admissible as the same is silent as to who dispatched/took the samples for analysis. They
further argued that the case of the prosecution is full of doubts, but the benefit of doubt has
not been extended to the appellant -convict by the trial court.
On the other hand learned Special Prosecutor ANF Balochistan Quetta Mr. Shaukat
Ali Rakhshani argued that the prosecution witnesses throughout remained consistent in
proving recovery of contraband from the app ellant/ convict, the FSL report mentions that the
parcel was sealed and the I.O. has clarified that the sample was taken by hand to Laboratory
on 1 -9-2008 by a Constable. With regarding of non -availing of search warrant the learned
counsel referred section 21 of CNS Act and stated that the F.I.R. itself reveals the emergency
situation for raid due to which the raiding party was unable to avail such warrants as it was
late night hours and there was possibility of removal of the contraband if delay had
occasi oned in the raid. The learned counsel also referred section 29 of the CNS Act and
argued that the appellant/convict has failed to rebut the presumption of guilt attached.
Learned counsel further argued that the ownership of the house is immaterial as the r ecovery
otherwise stands proved from the Baitak of the house and possession of the appellant. He
further argued that section 6 of CNS Act relates to possession of the contraband and not to
the ownership of the premises.
After hearing arguments of learned counsel for the parties, we have gone through the
record of the case.
Record reveals that raiding party received information about the possession and
transportation of the narcotics to a customer at 8 -30/9-00 P.M. and after constituting a
raiding party ra id was conducted at about 10 -15 P.M. Since it was odd hours of the night,
there was no possibility of availing search warrant and the emergency for raid finds mention
in the F.I.R. in the following words: --
Section 21 of CNS Act empowers the Officer to enter, search, seize and arrest without
warrant and section 20 of CNS Act is directory in nature, therefore, its non -compliance
cannot be considered a strong ground for holding that the trial of the appellant/convict was
bad in the eye of law and in this r egard we are supported by the judgment of the apex Court
reported as 2001 SCMR 36. In view of the apprehension of concealment of evidence,
removal of contraband or escape of the accused, raid and seizure can be made without
obtaining warrant under section 21 of the CNS Act, and in view of section 21 of CNS Act the
argument of the learned counsel for the appellants has no force. The circumstances of the
instant case reveal that it was an exceptional case in which search warrant could not possibly
be obtained before conducting the raid.
Regarding objection of the learned counsel for the appellants about proving the
ownership of the house, suffice to observe that section 6 of CNS Act deals with
prohibition of possession of narcotics substance and ownershi p of the premises is immaterial
if the possession of the contraband is proved otherwise. In the instant case the prosecution
witnesses have throughout remained consistent and there are no contradictions in the
statements of prosecution witnesses with regar d to the recovery of opium from the Baitak in
presence and possession of the appellant/convict, there is no evidence on record to show that
other persons were present in the Baitak. According to prosecution witness attempt was made
to find/ascertain the ow nership of the house, but could not succeed.
According to section 29 of the CNS Act in trials under this Act it may be presumed,
unless and until the contrary is proved that accused has committed an offence under this Act
in respect of contraband. The pre sumption is rebutable, but the appellant/convict throughout
the trial has failed to rebut the presumption. The appellant/convict despite availing ample
opportunity has failed to produce the ownership documents of the raided house nor has
produced any witne ss or owner of the house in his defence. The defence during cross -
examination of P.Ws. suggested/alleged that raided house belongs to uncle of
appellant/convict, but neither any ownership document of uncle were produced nor uncle was
produced as defence wi tness, hence the argument of learned counsel for the appellant has no
weight. The judgment relied by the learned counsel of appellant/convict 2009 PCr.LJ 1270 is
distinguishable as in that case report of Chemical Expert was not made part of the record and
the house where from recovery was made was found to be owned by someone else. In the
instant case the appellant/convict has not brought anything on record to disprove the
ownership or his possession of the disputed house.
The defence has been wavering thr oughout the trial. For instance during cross -
examination to P.W.1 following suggestion was made: --
The following suggestion was made to P.W.2: --
Following suggestions were put to P.W.3: --
And while answering question No.2 in his statement under section 342, Cr.P.C. the
appellant/convict stated as under: --
The appellant/convict is not consistent in his plea and has absolutely failed to rebut
the presumption attached under section 29 of the CNS Act.
The objection of the learned counsel for the appella nt on the analysis report is also
vague as the analysis report Exh.P/3 -C has been issued by Federal Government Analyst
Balochistan Quetta, who had received sealed parcel of the suspected material and according
to P.W.3 the same was sent through a constable on 1-9-2008 to the Laboratory by hand. The
judgement relied by the learned counsel for appellant/convict 2002 MLD 1195 is not
attracted in the circumstances as the parcel was received sealed and record reveals that it was
taken to laboratory by hand by a constable.
The learned counsel for the appellant/convict agitated that charge is defective, but
perusal of the charge reveals that same is not defective and plea with regard to recovery of
contraband from the Baitak of the appellant/convict has been prope rly put to the
appellant/convict, which has been denied by the appellant. The object of the charge is to
enable the accused to know the precise accusation against him, which he is required to meet
before evidence is adduced by the prosecution against him. In our view the charge framed by
the trial court has served the object and there is no error or illegality in same.
The learned counsel for the appellant/convict prayed to consider the statement of
ANF Constable Jahanzaib recorded as P.W.2 in Sessions Ca se No.20 of 2008 under section
13-E of Arms Ordinance on the ground that the witness relates to the occurrence of same
transaction and such statement is admissible under Article 47 of Qanun -e-Shahadat Order,
1984. For convenience Article 47 is reproduce d herein below: --
"Evidence given by a witness in a judicial proceeding, or before any person
authorized by law to take it is relevant for the purpose of proving, in a subsequent
judicial proceeding, or in a later stage of the same judicial proceeding, th e truth of the
facts which it states, when the witness is dead or cannot be found, or is incapable of
giving evidence, or is kept out of the way by the adverse party, or if his presence
cannot be obtained without an amount of delay or expense which, under the
circumstances of the case, the Court considers unreasonable:
Provided that;
The proceedings were between the same parties or their representatives -in-interest;
examine;
The question is issue were substantially the same in the first as in the second
proceeding."
Neither the witness Jahanzaib has appeared in the instant case under CNS Act
before the Special Judge CNS Quetta nor any application was moved by the
appellant/convict to examine said witness in the instant case. More -so-over, there is
nothing on record that the said witness is dead or cannot be found or is incapable of giving
evidence or has been kept out of the way by the adverse party or his presence cannot be
obtained. Hence, in view of section 47 of Qanun -e-Shahadat Order , 1984 the statement of
Jahanzaib Constable recorded in Sessions Case No.20 of 2008 under section 13 -E of Arms
Ordinance cannot be taken into consideration under any law for decision of the instant
appeal.
The appellant/convict raised defence plea that th e appellant/ convict had a
dispute/quarrel with Col. Irfan of ANF, but the appellant throughout failed to substantiate
this plea, so much so, in his statement on oath the appellant did not utter a single word in this
regard rather on the contrary during cr oss-examination the appellant/convict admitted that he
has no dispute or enmity with Captain Shehzad Younis P.W.2 and Major Sajid Sharif P.W.1.
Hence, the defence plea proves sham and baseless and no question arises of false implication
or foisting the con traband. On query the counsel for appellant/convict informed that in the
connected case of 13 -E Arms Ordinance the appellant was acquitted as the Kalashnikov was
licensed one in the name of brother of appellant/convict, whereas the appellant/convict was
awarded conviction under sections 3, 4 Prohibition (Enforcement of Hadd) Order, 1979 for
the recovery of 22 Tins of Beer from the same Baitak and the appellant has not challenged
that conviction, which is another circumstance against the appellant/ convict.
In view of the above discussion and evidence we are of the view that the prosecution
has proved its case up to the hilt with regard to recovery of 15.500 Kgs Opium from the
possession of appellant/ convict from his Baitak and the appellant has throughout
failed to rebut the same. There exist no doubt in the case of prosecution, the conviction
awarded to the appellant/convict by the trial court is based on proper appreciation of
evidence on record and we see no reason to interfere in the same. Resultantly, the appeal
having no force is dismissed.
H.B.T./77/Q Appeal dismissed.
Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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