2012 M L D 2 85
[Balochistan]
Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
Mir HAZAR KHAN ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.89 of 2007, decided on 18th July, 2011.
(a) Control of Narcotic Substances Act (XXV of 199 7)---
----S. 9(c) ---Possessing narcotics, arms and ammunition ---Appreciation of evidence ---
Prosecution had proved its case beyond reasonable doubt that the narcotics along with arms
and ammunitions were recovered from the house in possession of accused ---Disclosure,
followed by the statement recorded under S.161, Cr.P.C. coupled with the recovery of
contraband items and the arms and ammunitions from the conscious possession of accused,
had proved the case against accused to the hilt ---Despite lengthy c ross-examination, the
defence had failed to create any dent or doubt in the prosecution case ---Witnesses remained
firm and the evidence so recorded inspired confidence ---Prosecution evidence was straight,
consistent, believable and there seemed no reason t o disbelieve the same ---Statements of
prosecution witnesses had clearly established the guilt of accused ---Prosecution had
succeeded to produce sufficient material against accused and had successfully established the
case against accused beyond any shadow of reasonable doubt ---Accused was rightly
convicted and sentenced, in circumstances.
(b) Criminal trial ---
----Statement of hostile witness ---Scope ---Statement of a hostile witness could not be
discarded as a whole, if the statement would find support from the rest of the material, and in
such circumstances, same could be taken into consideration.
Syed Ayaz Zahoor for Appellant
Abdul Sattar Durrani, Addl: P.G. for the State.
Date of hearing: 30th June, 2011.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J.---Instant appeal is directed against the judgment
dated 31st March, 2007 passed by the learned Special Judge C.N.S, Quetta (hereinafter
referred to as Special Judge), whereby the appellant was found guilty and sentenced in the
following terms: --
Under section 9(c) of Control of Narcotic Substances Act, 1997 to suffer life imprisonment
with fine of Rs.300,000 or in default thereof to further undergo three years' S.I. Benefit of
section 382 -B, Cr.P.C. was also extended in favour of appellant.
2. Fact s relevant for disposal of instant appeal are that pursuant to spy information an F.I.R.
No. 3 of 2003 dated 23rd July, 2003 under section 9(c) CNS Act, 1997 was registered with
CID Police Station, Quetta regarding availability of arms, ammunition and narc otics in the
house of appellant situated at Killi Turkaman, Dasht. It was further alleged in the F.I.R. that
on such information a raiding party under the supervision of Wazir Khan Nasir SP and other
police personnel raided the above said house which resul ted in recovery of large quantity of
arms, ammunition, baked and raw charas. On weighing the baked charas, the same was found
140 kilograms, whereas the raw charas was found 19 kilograms. After recovery, 370 grams
charas were separated for chemical analysi s from both baked and raw charas. The recovered
charas were taken into possession and appellant was arrested.
3. Investigation was conducted and on completion of the same challan to the extent of
appellant was submitted before the Special Judge for tria l, whereas the police could not lay
hand on Muhammad Zubair and Sultan (co -accused), as such they were declared as
absconders and proceeded against under section 512, Cr.P.C. Charge was framed under
section 9(c) of the Act, to which the appellant did not p lead guilty and claimed trial. Where -
after prosecution in order to substantiate the accusation produced as many as eight (8) PWs.
4. At the end of prosecution evidence, the appellant was examined under section 342,
Cr.P.C., wherein he denied the incrimin ating pieces of evidence. The appellant also opted to
record his statement on oath as envisaged under section 340(2), Cr.P.C. besides producing
DW-1 Muhammad Hanif and DW -2 Ghulam Haider.
5. We have heard Syed Ayaz Zahoor, Advocate for appellant, whereas the State was
represented by Mr. Abdul Sattar Durrani, Additional P.G. Learned counsel for the appellant
argued that prosecution case is based upon statement of appellant under section 164, Cr.P.C.
Perusal of the same proves that neither he was owner nor had any concern and connection
with the alleged recovery. He next argued that the learned trial Court mis -appreciated the
evidence and misinterpreted the law and thus arrived at a wrong conclusion. Statements of
P.W.1 and P.W.2 would show that the alleged recovery was effected from the house, as such
it could safely be inferred that appellant is absolved from the commission of offence. This
fact escaped notice of learned trial Court. The confessional statement of appellant was
recorded after delay of 15 day s, as such the same could not be used against him. The
prosecution despite having prior information failed to obtain search warrant which vitiate the
entire proceedings. The recovery was made in violation of section 103, Cr.P.C. as such
prosecution case is full of doubt and it cannot be said that the prosecution has been able to
prove case against the appellant. The learned trial Court unlawfully, without any rhyme or
reason discarded the evidence of P.W.4 (hostile witness) which otherwise favours the
appel lant and proves the fact that he was merely a bazgar.
On the other hand learned Additional P.G strenuously opposed the appeal and argued that the
learned counsel failed to point out any illegality or irregularity in the judgment impugned.
The grounds agi tated in the appeal and urged in arguments before this court are general in
nature. The prosecution has proved the guilt of appellant to the hilt. Confessional statement of
co-accused can be used against other accused as a substantive piece of evidence un der Article
43 of Qanun -e-Shahadat.
6. We have considered the contentions put forth by the parties' learned counsel and have gone
through the record minutely. Before dilating upon contentions put forth by the parties' learned
counsel, we think it expedi ent to reproduce the gist of prosecution evidence.
P.W.1 Syed Ikram Hussain, S.H.O. Police Station CID, Quetta deposed that on 22nd July,
2003, he was posted as S.H.O. Police Station CID, Quetta. On the fateful day, the high -ups
received information fro m informer that huge arms, ammunitions and narcotics have been
dumped in the house of one Mir Hazar Khan (appellant) situated at Killi Turkaman. On such
information, SP Operation Wazir Khan Nasir constituted a raiding party. I along with Dur
Muhammad S. -I., Noor Muhammad S. -I., Salman Kazmi S. -I., Ali Nawaz S. -I. and other
officials including lady constable Shamim Akhtar under the supervision of SP Operation
Wazir Khan Nasir in an official vehicle along with informer reached at Dasht Killi
Turkaman, where t he house of Mir Hazar Khan was cordoned off. The accused present in the
court was found sleeping in the courtyard. At 12 -30 Noon with the help of lady constable, the
womenfolk were caused to stay indoors, who were present in the rooms of house. The asleep
person was got awaken, who named himself as Mir Hazar Khan son of Baran Khan, in whose
presence the house was searched. In the said house towards Northern East, a place in the
shape of veranda grass was lying, which was removed, besides beneath the grass i n basement
huge quantity of arms, narcotics and ammunition, two sets of walky -talky along with
chargers and five bags blue in colour baked charas and in another blue bag raw charas were
recovered, which were weighed on the spot. The recovered baked charas (559 rods) became
140 kilograms, whereas the raw charas became 19 kilograms. The recovered narcotics were
taken into police custody through seizure memo in presence of witnesses Ali Nawaz S.I. and
Noor Ahmed S.I. A separate murasila of arms, narcotics and ammunition, for the purpose of
registration of case was prepared. From the recovered baked charas weighing 140 kilograms,
300 grams were taken for the purpose of chemical analysis, which were put into a white
parcel and parcel No.1 was prepared. Whereas fr om raw charas weighing 19 kilograms, small
quantity weighing 70 grams was sealed in parcel No.2 and stamp of Police Station CID was
used. The seizure memo and parcel was got signed from the witnesses, whereas the remaining
charas were put to the said blue bags and parcels Nos.3 to 7 were prepared and raw charas
was put into that blue bag and parcel No.8 was prepared. In all the parcels samples of seals
were put and stamp of Police Station CID Balochistan was used and a separate written
murasila for registra tion of case against the accused was sent to Police Station. Salman
Kazmi S. -I. was appointed for investigation of the case, who during investigation, in
connection of training course left for Islamabad and the remaining investigation was
completed by Abdu l Khaliq S. -I. and handed over the papers to the witness. He prepared
incomplete challan Exh.P/l -B and sent the same to the competent Court for trial. He produced
Murasila Exh.P/1 -A and identified his signature and stamp on challan as well as on exhibits.
He also identified the accused Mir Hazar Khan present in the Court.
P.W.2 Ali Nawaz, SIP Police Station CID Satellite Town, Quetta deposed that on 22nd July,
2003, he was posted in Police Station CID, Quetta. On the fateful day, the informer informed
the high -ups that at Killi Turkaman Dasht in the house of one Mir Hazar Khan huge quantity
of arms, ammunitions and narcotics have been dumped. On such information, the high -ups
constituted a raiding party. I along with Noor Ahmed S. -I., Dur Muhammad, S. -I., Salman
Kazmi, S. -I., Syed Ikram Zaidi S. -I./S.H.O. and other police officials as well as lady
constable Shamim Akhtar in official vehicle reached at the venue at 12 -30 Noon. The said
house was raided. During search grass was lying on the floor of v eranda, which was removed
and checked. From which in the basement huge quantity of arms and ammunitions, whereas
in that veranda beneath the bags five blue plastic bags in which baked charas and in another
bag raw charas were recovered. The recovered char as, on weighment at the spot, became 140
kilograms, which consisted upon 559 rods, whereas the raw charas, on weighment, became
19 kilograms, which were in plastic bags. From the recovered 140 kilograms baked charas,
300 grams were taken for the purpose of FSL analysis and parcel No.1 was prepared and
from 19 kilograms raw charas small quantity was separated which became 70 grams and
parcel No.2 was prepared on the spot. Whereas the remaining baked charas weighing 139.700
kilograms was put in the said plast ic bags and parcels Nos. 3 to 7 were prepared and the
remaining raw charas weighing 18.930 kilograms were put to another plastic bag and parcel
No.8 was prepared. He prepared Fards of house search, recovery of arms, ammunitions,
baked and raw charas as Exh .P/2-A upon which he identified his signature and signature of
Noor Ahmed S. -I.
P.W.3 Muhammad Aamir constable deposed that on 5th August, 2003, he was posted at
Police Station, Qahid Abad. Along with him Constable Nabi Bakhsh was also posted in the
said Police Station. The accused Mir Hazar Khan present in the Court was being interrogated
in the Police Station by Investigating Officer Abdul Khaliq, SP Wazir Khan Nasir and Dur
Muhammad SIP. During investigation of the case appellant disclosed that actuall y he is
resident of Afghanistan and has migrated to Pakistan. For the last six years he is working
with Aasim Kurd alias Gallo and plying tractor in his lands. Sometime ago Messrs
Muhammad Zahir and Sultan came there and told him that they will bring arms and
ammunition as well as baked charas belonging to Gallo, as Gallo has asked them to dump the
same in the house of his bazgar Mir Hazar Khan. He got feared but the accused told him that
he shall not worry as Gallo is a Minister. After sometime at night ti me Zahir and Sultan came
in three Symorgh vehicles loaded with arms and baked charas. They digged a ditch in the
house and kept there the arms and six bags of charas. After ten days brother of Gallo namely
Abdul Malik came and enquired about arms and ammun ition. He asked from said Abdul
Malik when the contraband items will be removed but he did not answer. After some days
police raided and arrested him along with arms, ammunitions and charas. On the disclosure of
accused, S. -I. Abdul Khaliq prepared disclos ure memo as Exh.P/3 -A.
P.W.4 Jaffar Khan deposed that his joint lands are situated at Dasht Mouza Sakozai. In the
year, 1997 he was informed by his Bazgar that on his lands a house in the shape of fort is
being constructed. I with the help of bazgars tri ed to get stop the work but could not succeed.
Whereafter Sarddar Dinar Khan Kurd told me to be quiet and not to object. Whereafter I
came to know through newspaper that arms have been recovered from Dasht.
P.W.5 Inayatullah Judicial Magistrate, recorded the statement of appellant under section 164,
Cr.P.C. and produced the same as Exh.P/5 -A.
P.W.6 Mir Abdul Jabbar Chemical Expert, who produced the FSL report as Exh.P/6 -A.
P.W.7 Mirza Abdul Khaliq S. -I. deposed that investigation of the case was with Salman
Kazmi, who went for training out of the country. I was entrusted with investigation on 30th
July, 2003 and on 1st August, 2003 statements of witnesses Jaffar and Mardad Deenar Khan
Kurd were recorded under section 161, Cr.P.C. and obtained FSL repor t. During
investigation, the accused disclosed and involved two gunmen of Muhammad Aasim Kurd
Gallo namely Sultan and Abdul Zahir that they have been told by Muhammad Aasim Kurd to
put those arms into the house of his Bazgar Mir Hazar Khan and after two da ys brought the
same. Along with arms narcotics were there. The witness produced disclosure memo as
Exh.P/3 -A. On 6th August, 2003, the accused already arrested in Crime No. 2 of 2003 under
section 13 -E Arms Ordinance was produced before the Judicial Magist rate-III, Quetta, who
recorded his confessional statement, as in the said statement, the accused disclosed about that
narcotics, therefore he was sent to Judicial lockup. Thereafter he handed over the papers to
S.H.O., who prepared challan.
P.W.8 Syed Sa lman Haider Kazmi, SI/CID deposed that on 22nd July, 2003, the informer
informed the CID officials regarding arms, ammunitions and narcotics at the house of Mir
Hazar Khan situated at Turkaman Dasht. On such information, Wazir Khan Nasir DSP
constituted a raiding party. On 23rd July, 2003, he along with Noor Ahmed S. -I., Ali Nawaz
S.-I. and other CID police officials as well as lady constable Shamim Akhtar reached
Turkaman Dasht. On the pointation of informer, the house of Mir Hazar Khan was cordoned
off an d entered into it. A person was found sleeping in the courtyard, whereas the womenfolk
present in the rooms were caused to stay indoors. The person asleep in the courtyard was got
awaken, who on interrogation named himself as Mir Hazar Khan son of Baran Kh an caste
Kurd. In whose presence the house search was conducted. During house search in the veranda
beneath the grass a basement in the shape of room appeared, which was checked in which
huge quantity of arms and ammunitions were recovered. Whereas beneath the grass lying in
the veranda, a walky -talky and in five blue bags baked charas and in another bag raw charas
were recovered, which were weighed on the spot. The baked charas (559 rods) became 140
kilograms and the raw charas became 19 kilograms. All the arms, charas and walky -talky set
were taken into possession through seizure memo. as Exh.P/2 -A by Ikram Hussain Zaidi S. -I.
and from baked charas small pieces (which became 300 grams) were taken for chemical
analysis and parcel No.1 was prepared, whereas from the raw charas small quantity (which
became 70 grams) were also taken for chemical analysis and parcel No.2 was prepared.
Whereas the remaining baked and raw charas were put in the said bags and parcels Nos.3 to 8
were prepared. In this regard Ikram H ussain Zaidi prepared Murasila as Exh.P/A and sent the
same to CID Police Station for registration of case; on which F.I.R. Exh.P/8 -A was registered
and investigation was entrusted to me. I took into possession the already prepared Fard in
Crime No.2 of 20 03 through seizure memo Exh.P/2 -B. The accused was arrested, site plan as
Exh.P/8 -B was prepared upon which identified his signatures and recorded the statements of
witnesses. On 26th July, 2003 the name of witness has been ordered for Islamabad Course, as
such after handing over the papers to S.H.O. left for Course.
The perusal of record reflects that the prosecution has proved its case beyond
reasonable doubt that the narcotics (subject -matter of instant appeal) along with arms and
ammunitions (subject -matter of S.C. No. 02 of 2003) were recovered from the house in
possession of appellant. The disclosure followed by the statement recorded under section 164
Cr.P.C. coupled with the recovery of contraband items and the arms a nd ammunitions
from the conscious possession of appellant proved the case against the appellant to the hilt.
Despite lengthy cross -examination, the defence failed to create any dent or doubt in the
prosecution case. The witnesses remained firm and the evidence so recorded inspires
confidence. The prosecution evidence is straight, consistent, believable and there seems no
reason to disbelieve the same and the statements of P.W.1., P.W.2., P.W.3, P.W.5 and
P.W.6 have clearly establish ed the guilt. P.W.4, who is a private witness, was declared
hostile. Admittedly P.W.4 is not the witness of recovery, however; it appears that the
statement was recorded in order to avoid the consequence of constructive possession of
the o wner of the property. However, while declaring hostile, the following portion of
the statement thereof is quite important: --
7. Irrespective of the legal position as to whether the prosecution could have confronted the
witness with his state ment recorded under section 161 Cr.P.C., the prosecution has succeeded
to produce sufficient material against the appellant. There is no cavil with the legal
proposition that the statement of a hostile witness cannot be discarded as a whole if t he
statement finds support from the rest of the material and in such circumstances, same can be
taken into consideration. In our considered opinion prosecution has successfully established
the case against the appellant beyond any shadow of reasonable doub t, hence we do not find
any merit in the appeal, which is hereby dismissed.
Before parting with the judgment, we feel it inevitable to note that the investigation of this
case was not conducted properly by the Investigating Officer. There was/is substant ive
material available with prosecution during the course of investigation qua the persons
nominated by the appellant as carrier and owner of the recovered arms, ammunitions and
narcotics, but for the reasons best known to the Investigating agency, it did not join and
associate them in the investigation. Therefore, the I.G Balochistan to probe into the matter
and to fix the responsibility of delinquent officer/officers for conducting such poor and partial
investigation
H.B.T./96/Q 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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