2017 M L D 288
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
SHAHID DADA--- Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.15 of 2016, decided on 8th September, 2016.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S.9(c) ---Criminal Procedure Code (V of 1898), S.103---Possession of narcotic substance ---
Appreciation of evidence ---Non association of private person as witness ---Validity ---Contraband
was allegedly recovered from a populated area of the locality ---Prosecution witnesses were
police officials ---No private witness had been associated by the Investigating Officer at the time
of alleged recovery despite having spy information about the offence ---Admittedly, Investigating
Officer did not call any p rivate witness to associate the proceedings ---Manner of recovery
therefore had lost its sanctity ---Appeal was allowed and conviction and sentences recorded by
trial court against accused were set -aside in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss.9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Possession of narcotic
substance ---Appreciation of evidence ---Benefit of doubt ---Applicability of S. 103, Cr.P.C.---
Scope ---Contraband was allegedly recovered from a popul ated area of the locality ---No private
witness was associated in the recovery proceedings, which was violation of S. 103, Cr.P.C.---
Fact remained that S. 25 of Control of Narcotic Substances Act, 1997, excluded the applicability
of S. 103, Cr.P.C. in narcotics cases, but there should be some plausible explanation on the
record that attempts were made to associate any independent witness from the locality ---Record
had shown that no such efforts/attempts were made by the Investigating Officer ---Accused had
pleaded his false implication and also denied his arrest from the place of occurrence---
Association of an independent witness was necessary to attest the recovery proceedings ---
Circumstances of the case had created serious doubt in the case of prosecution, benefit of which
resolved in favour of accused---Appeal was allowed and conviction and sentences recorded by
trial court against accused were set -aside in circumstances.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2) ---
Seizure of narcotic--- Chemical analysis Appreciation of evidence ---Benefit of doubt ---
Prosecution had alleged that 03 kilogram charas was recovered from the possession of accused---
Delay of about six months and twenty four days in sending the sample of narcotic to Chemical
Examiner for analysis -- Said delay was not explained by the prosecution---Alleged narcotic was
whether in safe and secure custody during the intervening period had not been expla ined by
prosecution--- Exercise of sending the narcotic for analysis was required to be completed within
seventy -two hours of the recovery as per law ---Such inordinate delay was fatal to the case of
prosecution as there was no guarantee that during the inte rvening period, the sample was not
changed, replaced or tampered ---Appeal was allowed and conviction and sentences recorded by
trial court against accused were set -aside in circumstances.
(d) Control of Narcotic Substances Act (XXV of 1997) ---
----S.9(c) ---Recovery of narcotic substance---Appreciation of evidence--- Narcotic recovered in
different packets ---Chemical examination ---Procedure ---Charas in three packets was allegedly
recovered from possession of accused but only a "small" and unspecified quantit y was taken
from every packet as a sample and were mixed up and made into one sample of 20 grams which
was sent to Chemical Examiner for analysis ---As to from which packet the substance was taken
for analysis could not be ascertained ---Such circumstances cast serious doubt about the veracity
of prosecution case, benefit of which would resolve in favour of accused---Appeal was allowed
and conviction and sentences recorded by trial court against accused were set -aside in
circumstances.
Amir Zeb v. The State PLD 2012 SC 380 and Muhammad Aslam v. The State 2011
SCMR 820 rel.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---Many circumstances creating doubt were not necessarily
required, single dent in prosecution case was sufficient to acquit the accus ed.
Muhammad Khair Mengal for Appellant.
Muhammad Younas, Additional P.G. for the State.
Date of hearing: 29th August, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Jail Appeal No.15 of
2016 filed by the appellant Shahid Dada son of Allah Bakhsh through Superintendent Central
Jail Gaddani; against the judgment dated 15th March 2016 (hereinafter referred as, "the
impugned judgment") passed by the learned Special Judge Control of Narcotics Substance,
Lasbella at Hub (hereinafter referred as, "the trial Court"), whereby the appellant was convicted
under Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer Four (04)
years' R.I. with fine of Rs.25,000/ - or in default thereof to further suffer Five (05) Months' S.I.,
with the benefit of Section 382- B, Cr.P.C.
2. Facts of the case are that on 12th May 2015 the complainant Syed Ghulam Mustafa Shah,
SI/SHO lodged FIR No.154 of 2015 at Police Station Hub City district Lasbella under Section
9(c) of CNS Act, 1997 against the appellant, with the averments that on the said date at about
7.45 p.m. he along with other police officials during the course of routine patrolling, received
spy information that the appellant, who deals in narcotics business is waiting, near Gulshan -e-
Amirabad Pull for supply of narcotics to someone. On such information, the patrolling party
reached at the place of occurrence, found the appellant in suspected condition, who on seeing the
police tried to escape, but was apprehended and his per sonal search was resulted into recovery of
3-KGs strip shaped "Charas" kept and concealed in a polythene bag held by him. Hence, small
pieces of contraband from each packet total 20 -grams was separated for analysis purposes and
sealed in parcel No.1, while the remaining Charas was sealed in parcel No.2.
3. In pursuance of the above FIR, investigation was entrusted to PW3 Mitta Khan, SI/HO,
who during investigation recorded the statements of witnesses under Section 161, Cr.P.C.; sent
the samples for analysis to FSL. On completion of investigation submitted the incomplete
challan in the trial Court, while on receipt of FSL report in affirmative, submitted the same in the
trial Court through complete challan.
4. At the trial, the prosecution produced as many as three witnesses. The appellant was
examined under Section 342, Cr.P.C. However, he did not record his statement on oath under
Section 340(2), Cr.P.C., but produced two witnesses in his defence. On conclusion of trial and
hearing the arguments, the trial C ourt awarded conviction to the appellant as mentioned above,
whereafter the instant appeal has been filed.
5. Learned counsel for the pauper appellant Mr. Muhammad Khair Mengal, Advocate,
contended that the appellant has falsely been implicated in the inst ant case; that the occurrence
was taken place in a populated area of the locality despite having spy information the
prosecution has failed to associate any private witness in the recovery proceedings, thus the
alleged recovery is in violation of Section 103, Cr.P.C.; that the samples drawn from the
allegedly recovered contrabands were of lesser quantity; that the samples were sent to Chemical
Examiner after delay of 6/7 months and with no explanation, that for such a long period in whose
custody the allege d contraband was kept; that whatsoever has been alleged, has not been
committed by the appellant and he is innocent and liable to be acquitted from the charge.
6. Conversely, the learned Additional Prosecutor General while supporting the impugned
judgment and opposing the arguments so advanced by the learned counsel for the pauper
appellant, contended that the prosecution has successfully proved its case beyond the Shadow of
reasonable doubt, as such, the learned trial Court had rightly convicted the appell ant. He prayed
for dismissal of appeal.
7. We have heard the learned counsel for the parties and with their able assistance, perused
the record minutely. It is the case of prosecution that on 12th December 2015 the police party
was on patrolling, received spy information that the appellant is standing on road side having
huge quantity of contraband and thereafter the police party rushed to the site of occurrence where
found the appellant in possession of contraband, in his hand in a plastic shopper containi ng three
packets and each packet was of 1 -Kg, total 3 -Kgs. Hence, after weighing the contraband 20 -
grams samples were separated from all recovered material for chemical analyses sealed in parcel
No.1.
8. So far as, the violation of Section 103, Cr.P.C. wit h regard to non -association of
independent witness in the recovery proceedings is concerned, suffice to add here that it has
come on record that the contraband was allegedly recovered from a populated area of the
locality, but no private witness was associ ated by the Investigating Officer. The perusal of record
shows that it is admitted fact as deposed by the prosecution witnesses that the place of
occurrence was located at populated area and on a busy road and it is also admitted by the
Investigating Offic er in his cross -examination that he did not call any private witness to associate
with them. To that extent the contention of the counsel for the appellant remains firmed.
Therefore, the manner of recovery as narrated through evidence recorded by the polic e officials
has lost its sanctity. We are also conscious of the fact that Section 25 of Control of Narcotics
Substance Act, 1997 excludes the applicability of Section 103, Cr.P.C. in narcotics cases, but
simultaneously there should some plausible explanati on that actually attempts were made to
associate any independent witness from the locality, when otherwise under the circumstances of
the present case the appellant has pleaded his false implication and even denied his arrest from
the place of occurrence o r at the time as shown by the prosecution, hence in these background of
the case the association of an independent witness was necessary to attest the recovery
proceedings, but admittedly no such efforts were made by the Investigating Officer, which has
created serious doubts in the case of prosecution.
9. Now adverting to the contention of the counsel for the pauper appellant with regard to
dispatching the samples to FSL after considerable and long period, is concerned, suffice to
observe here that the all eged recovery of the contraband was effected on 12th May 2015 and
after recovery the samples were drawn and separated at the place of recovery. Legally, the
prosecution is duty bound to send the samples to the Chemical Examiner within 72 hours of the
seizu re as required under Rule 4(2) of the Control of Narcotic Substances (Government
Analysts) Rules, 2001, but perusal of Examination Report dated 7th December, 2015 reflects that
the samples were received to the FSL on 4th December, 2015 i.e. after inordinat e delay of 6
months and 24 days and that too without any plausible or justifiable reasoning or explanation. In
such background of the case, now serious question arises with regard to safe and secure custody
of the contraband from the date of its recovery t ill the date of its dispatch to the FSL. The
Investigating Officer made an attempt to fill in such lacuna by taking plea that initially the
samples were sent to the FSL at Karachi, but the samples were returned without any examination
report and that's why the said samples were sent to FSL Quetta. The explanation so tendered by
the Investigating Officer does not seem to be logical and is acceptable to a prudent mind in any
manner. The Investigating Officer has absolutely failed to place any incriminating ev idence
showing or suggesting that soon after the recovery of contraband and after separating samples for
analysis the same were dispatched to FSL at Karachi for analysis purposes within the specified
and stipulated period as provided under Rule 4(2) of the Control of Narcotic Substances
(Government Analysts) Rules, 2001. The prosecution has absolutely failed to place any
correspondence that had taken place in between the Investigating Agency and the FSL Karachi
establishing the plea of the Investigating Off icer with regard to dispatch of the contraband to
FSL Karachi and its return by the latter without examining the same. Mere bald words of the
Investigating Officer are not enough to believe that actually the delay in dispatching the
contraband to FSL was due to some unavoidable circumstances. The prosecution cannot be
permitted to fill- in the lacunas through bald pleas. We are also conscious of the fact that mere
delay of few days in sending the samples for analysis would not cast serious doubt upon the
prosecution case, but the fact in the instant case is quite different, as the samples were sent to
FSL after considerable delay, which is expanded within the period of 6 months and 24 days and
such delay can neither be taken lightly nor is condonable, therefore, no implicit reliance could be
placed on Chemical Examiner's report, hence the case of the prosecution is highly doubtful,
because there is no guarantee that during the intervening period the samples were not changed,
replaced or tampered.
10. Another i mportant aspect of the case is that three packets of contraband were allegedly
recovered by the police and according to prosecution small and unspecified quantity of
contraband was separate for analysis. It is transpired from the memo. of recovery produced by
PW-2 Abdullah as Ex.P/2- A, wherein it is clearly mentioned that only 20- grams was separated
from recovered contraband collectively and mixed and sealed in parcel No.1 for chemical
analysis and the rest of 2980- Grams was sealed in parcel No.2. The witne ss in his examination in
chief dishonestly deposed that the samples were drawn from each and every packet of
contraband, but perusal of recovery memo does not support/corroborate his deposition. It is
further transpired from the record that the samples dra wn in a lesser quantity from the alleged
contraband and there after mixed and packed in one parcel, which could not be ascertained that
the said samples were drawn from which packet. Such proposition of the case in hand was
against the law as laid down by the Hon'ble Supreme Court of Pakistan in case of Amir Zeb v.
The State, reported in PLD 2012 SC 380 as well as the judgement of Muhammad Aslam v. The
State; reported in SCMR 2011 page 820, wherein it was held that, "Delay of more than seven
days in sending the samples of narcotics to Chemical Examiner for analysis was also not
explained by the prosecution... though, as per Rule 4(2) of the Control of Narcotic Substances
(Government Analysts) Rules. 2001, this exercise was required to be completed within seventy
two hours of the recovery, and for this purpose, even there is no plausible explanation from the
side of the prosecution that why such inordinate delay was caused in the completion of this
exercise by the Investigating Officer." It is settled proposition of law that a single dent in
prosecution case is sufficient to acquit the accused and it is wise saying that "for all reasons it is
true to say "that miscarriage of justice may arise from acquittal of the guilty, no less from
conviction of the innocent ".
11. In view of the above facts, we have come to the conclusion that the prosecution has
miserably failed to prove its case beyond any shadow of reasonable doubt, because despite
having spy information, no private and independent witness was associated by the prosecution in
recovery proceedings, which further weaken the case of prosecution. Besides, 20- grams samples
were drawn and separated from the recovered contraband has also further dent the case of
prosecution because according to recovery memo. the samples were drawn from whole
contraband instead of taking representative quantity of samples from each and every packet and
to be sealed separately as per golden principle laid down by the Hon'ble Apex Court in Amir
Zeb's case supra. Further the samples were sent to FSL. with inordinate delay of 6/7 months
without any plausible explanation, has further created doubt in the case of prosecution, as such,
benefit of doubt goes to the appellant as a settled principle of law.
For the above reasons, the appeal is accepted and the impugned judgment dated 15th
March, 2016 passed by the learned Special Judge Control of Narcotic Stances, Lasbella at Hub is
set aside. The appellant Shahid Dada son of Allah Bakhsh is acquitted of the charge under
Section 9(c) of CNS Act, 1997 in FIR No.154/2015 Police Station Hub City. The appellant being
in custody is ordered to be released forthwith, if not required in any other case.
JK/71/Bal Appeal accepted.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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