2019 M L D 1377
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
SAMIULLAH and others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos. 214 and 225 of 2018, decided on 16th March, 2019.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---
Recovery of narcotic substance---Appreciation of evidence ---Benefit of doubt ---Delay in
sending samples for analysis ---Effect ---Accused p ersons were charged for possession of
charas concealed in secret cavities of the vehicle--- Samples were drawn on the same
date and sealed in parcels ---Samples ought to have been sent for analysis to the
Chemical Examiner within 72 hours of the seizure as required by R. 4(2) of Control of
Narcotic Substances (Government Analysts) Rules, 2001--- Samples were sent for analysis
after a delay of 20 days ---Investigating officer failed to tender any plausible explanation for
the delay in sending the samples for analysis ---Safe custody of contraband for a period of 20
days was not established on record--- Delay in sending the samples to Forensic Science
Laboratory rendered the analysis report as doubtful ---Naib Tehsildar who had sent t he
samples for analysis to Forensic Science Laboratory was not produced before the trial court
to ascertain as to when the samples were delivered to him for its onward transmission and during the intervening period whether the same was in the safe custody, as such the safe
custody and safe transmission of the contraband was not proved--- Prosecution failed to
establish that appellants were owner or possessor of vehicle from which contraband was recovered ---Judgment passed by trial court was set aside and app ellants were acquitted of the
charge, in circumstances.
Siraj -ud-Din v. The State (Criminal Appeal No.579 of 2017) rel.
(b) Administration of justice ---
----When a specific method was provided for doing any legal act in a specified procedure, such act was required to be done in that manner, deviation would amount
to violating the law.
Muhammad Yousaf v. The State 2017 MLD 1471 rel.
(c) Criminal trial ---
----Benefit of doubt ---Accused is entitled to get the benefit of the slightest doubt.
Najam -ud-Din Mengal for Appellant (in Criminal Appeal No. 214 of 2018).
Ghulam Mohey -ud-Din Sasoli for Appellant (in Criminal Appeal No. 225 of 2018).
Habibullah Gul, Additional P.G. for the State.
Date of hearing: 6th M arch, 2019.
JUDGMENT
ABDULLAH BALOCH, J. - This common judgment disposes of Criminal Appeals
Nos.214/2018 and 225/2018 filed by the appellants Samiullah son of Muhammad Usman and
Hussain son of Ibrahim, respectively, against the judgment dated 23rd June 2018 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge (CNSA) Khuzdar, whereby the appellants were convicted under Section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred as, "the CNS Act 1997") and sen tenced to suffer R.I. for
twenty five (25) years each with fine of Rs.200,000/ - (Two Hundred Thousand) each or in
default thereof to further suffer S.I. for two (02) years, with the benefit of Section 382- B,
Cr.P.C.
2. Facts of the case are that on 14th No vember 2017, the complainant Ali Ahmed,
Risaldar Levies, lodged FIR No.14/2017 at Levies Thana Naal, District Khuzdar, under Section 9(c) of the CNS Act, 1997, stating therein that on the said date he along with other levies officials were checking the veh icle at Levies check post Sardri Dal Nall, when at about
02.00 p.m. a 2D car (silver colour) bearing registration No.AFD -111 arrived there towards
Nall side, which was stopped, wherein two persons were boarded, who were alighted from the car and the search of the car was resulted into recovery of 40- packets backed Charas
weighing 40- Kgs from the secret cavities of vehicle and from CNG Cylinder. The personal
search of the appellants resulted into recovery of their CNICs denoting their names as Hussain son of Muhammad Ibrahim and Samiullah son of Muhammad Usman.
3. During investigation, samples of 20/20- grams each were separated from each packet
and sealed in parcels No.1 and the same was sent to FSL for analysis and on completion of investigation, challan was submitted in the trial Court and subsequently on receipt of FSL
report, the same was submitted in the trial Court through supplementary challan.
4. On receipt of challan, the trial Court indicated the charge to the appellants, who
denied the same and dur ing trial the prosecution examined three witnesses, whereafter the
appellants were examined under Section 342, Cr.P.C. However, they neither recorded their statements on oath under Section 340(2), Cr.P.C. nor produced any witness in their defence.
On concl usion of trial, the appellants were convicted and sentenced as mentioned above in
Para No.1. Whereafter, the instant appeal has been filed.
5. Learned counsel for appellants contended that the FSL report Ex.P/3- D is defective,
as the samples were received to FSL after delay of about 20- days, while the employee, who
transmitted the samples to FSL for analysis has also not been produced, thus serious doubts
are being created with regard to safe custody and safe transmission of the contraband; that the prosecution has failed to establish the ownership of the appellants in respect of vehicle, from which the recovery of contraband was effected; that the case of prosecution is doubtful being suffered from legal defects, but the benefit whereof was not e xtended to the
appellants by the trial Court requiring interference of this Court.
6. Learned APG while supporting the impugned judgement contended that the
prosecution through concrete, solid and independent evidence has succeeded in establishing the char ge against the appellants, besides the analysis report was received in affirmative
and the appellants have also failed to place on record any ill -will or ulterior motives on the
part of prosecution witnesses for his false implication, thus rightl y the appellants were
convicted and sentenced by the learned trial Court; that the FSL report was not disputed or denied by the appellants during trial, thus the same cannot be assailed at this appellate stage.
7. Heard the learned counsel and perused the available record. In order to establish the
charge, the prosecution has produced the evidence of three witnesses, perusal of such statements depicts the fact that absolutely it is a doubtful case being suffered from legal defects. The complainant of the ca se Ali Ahmed, Risaldar appeared as PW- 1, who mostly
reiterated the contents of fard -e-bayan Ex.P/1 -A. PW -2 Naseebullah, Constable was the
member of levies party as well as the recovery witness of the contraband. PW.3 Naib Risaldar/IO, is the Investigating Officer of the case, who counted the steps taken by him during the course of investigation.
8. The most important feature of the case is that the FSL report Ex.P /3-D is defective on
certain counts. Firstly, the recovery of contraband was effected on 14th November 2017 and the samples were drawn on the said date and sealed in parcels. The samples ought to have been sent for analysis to the Chemical Examiner within 72 hours of the seizure as required by Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal of Examination Reports Ex.P/3- D reflects that the same were received to FSL on 4th
December 2017 i.e. after delay of about 20-days. The Investigating Officer has failed to
tender any plausible explanation for delay in sending the samples for analysis. There is nothing on record establishing that during the intervening period of 20 -days in whose
custody the contraband was rema ined and question arises that whether the same was in safe
custody or that the same altered, manipulated, changed or replaced, thus the delay so occasioned in sending the samples to FSL, has rendered the analysis report as doubtful.
9. Secondly, the perus al of FSL report Ex.P/3- D further reflects that the samples were
transmitted to FSL for analysis by one Abdul Hameed, Naib Tehsildar, but the name of said person neither appeared in the list of witnesses nor he was produced in the trial Court in order to ascertain that when the samples were delivered to him for its onwards transmission
to FSL and during the intervening period whether the same were in the safe custody and its
transmission to FSL was safe, as such, the safe custody and safe transmission of t he
contraband was not proved. Reliance in this regard is placed on the judgment dated 29th October 2018 passed by Hon'ble Supreme Court in Criminal Appeal No.579 of 2017, titled as Siraj -ud-Din v. The State. For facilitation the relevant portion is reprodu ced hereunder:
"According to the prosecution different types of narcotic substances had been recovered in this case which were contained in different packets stored in different sacks. The recovery witness namely Sepoy Zain -ul-Haq (PW2) and the Investigat ing
Officer namely Inayat Ullah Sheikh (PW- 3) had stated before the trial court in so
many words that they did not know how many packets were contained in every sack recovered in this case. The sacks allegedly recovered in this case were opened before the trial court during the trial and the trial court had found that the said sacks were not
sealed. Safe custody of the recovered substances had not been proved in this case inasmuch as according to the prosecution the recovered substances were kept for safe custody in a warehouse but nobody from the said warehouse had been produced
before the trial court in order to vouch for safe custody of the recovered substances. Even safe transmission of the samples of the recovered substances had not been proved in this case. According to the report of the Forensic Science Laboratory the
samples had been brought to the Forensic Science Laboratory by one Sagheer Ahmed but no person by the name of Sagheer Ahmed had been produced before the trial court so as to confirm that the samples had remained in his custody quite safe while
transmitting the said samples to the Forensic Science Laboratory. As if this were not enough, the protocols of the tests applied on the samples of the recovered substances had not been mentioned in the report of the Forensic Science Laboratory brought on the record of the trial court."
10. Another important feature of the case is that the alleged recovery of contraband was
effected from the 2D car silver in colour bearing registration No.AFD -111, but the
prosecution has failed to establish the ownership of the appellants or their being as last possessor. In absence of any cogent and concrete evidence neither it can be presumed that the said car was owned by the appellants or that the appellants was la st possessor of the same.
11. It is well settled proposition of law that when a specific method is provided for a
doing any legal act in a specified procedure, thus such act is required to be done in that manner, deviation from suc h procedure would amount to violating the law. Reliance
in this regard is placed on the case of Muhammad Yousaf v. The State 2017 MLD 1471 (Balochsitan), which provides that, "The burden on prosecution to prove its case cannot be shifted to the accused in artificial manner when the law contemplates and provides a procedure for doing any act. When such procedure is not complied with, it amounts to violate the law."
12. The discrepancies so pointed out by the learned counsel for the appellants cannot be
taken lightly. It is a well settled principle of law that an accused is entitled to get the benefit
of a slightest doubt, whereas in the instant case certain discrepancies and doubts are apparent on the face of record, but the trial Court while delivering the impugned judgment has failed to extend the benefits of such doubts in favour of the appellants.
For the above reasons, the appeals are accepted. The impugned judgment dated
23rd June 2018 passed by learned Special Judge, CNS, Khuzdar is set aside and the
appellants Hussain son of Ibrahim and Amiullah son of Muhammad Usman, are
acquitted of the charge under section 9(c) of the CNS Act, 1997 in case FIR No.14/2017 at Levies Thana Naal, District Khuzdar. The appellants being in custody, are ordered to be
released forthwith, if not required in any other case.
Above are the reasons of our short order dated 6th March, 2019.
SA/16/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,
let us know.