2020 M L D 930
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
MUHAMMAD DEEDAR---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 83 of 2019, decided on 26th August, 2019.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---
Possession of narcotics ---Appreciation of evidence ---Benefit of doubt ---Contradiction in
statements of witnesses ---Delay in sending recovered samples to the Fore nsic Science
Laboratory--- Chain of safe custody---Levies force was alleged to have conducted raid and
recovered 100 kilograms of charas from the secret cavities of the vehicle driven by accused --
-Prosecution case was that after recovery of 100 packets of c haras, ten grams charas from
each packet was extracted and sealed into separate parcels for chemical analysis, while rest
of the charas was sealed in a separate parcel at the spot ---Prosecution witness negated the
version of prosecution during cross -examin ation ---Prosecutoin had failed to bring on record
the registration documents of the vehicle and failed to prove connection of the accused with the vehicle ---Sample was received by the Forensic Science Laboratory after delay of six
days ---Safe custody of al legedly recovered contraband till its receipt in the Forensic Science
Laboratory could not be reconciled from the record---Chain of custody, safe custody and safe transmission was altogether missing ---Prosecution had not complied with R.6 of Control of
Narcotic Substances (Government Analysts) Rules, 2001 as it had failed to provide full
protocols of test applied---Appeal was allowed and the judgment passed by Trial Court was set aside, in circumstances.
Minhaj Khan v. State 2019 SCMR 326; Ghulam Sarwa r v. State 2015 PCr.L.J 1767
and Khair -ul-Bashar v. State 2019 SCMR 930 ref.
Muhammad Zahid for Appellant.
Abdul Qahir Kakar, State Counsel.
Date of hearing: 21st August, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J .---This Criminal appeal is directed against the
judgment dated 08.04.2019 (impugned judgment) passed by the Model Criminal Trial
Court/Special Judge Narcotics, Pishin (trial Court), whereby the appellants was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to suffer Rigorous Imprisonment (RI) for life with fine of Rs.50,000/ - (Rupees fifty
thousand), in default whereof, further directed to undergo four (04) months Simple
Imprisonment (SI) with benefit of Section 382- B of Criminal Procedur e Code, ("Cr.P.C").
2. Brief facts leading to file the instant appeal are that on 18.01.2019 at about 4:30 p.m
complainant Naseebullah Khan Risaldar Major lodged an FIR No. 02/2019, at Levies Station
Saranan, alleging therein that on the fateful day at abo ut 4:00 p.m. he along with other levies
officials was on routine patrolling when they made a blockade at Mughal Chur near Refugees Graveyard. Meanwhile a vehicle bearing Registration No. ATM -378 coming from Saranan
side driven by the appellant/accused was intercepted. On search 100 packets of baked charas
(each packet weighing 1000 grams total 100 kilograms) were recovered from secret cavities of the vehicle, which were taken into possession through vide recovery memos.
3. After completion of investigation the challan was submitted before the trial court,
whereby charge was framed and read over to the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution led its evidence to substantiate the charge. On completion of prosecut ion evidence the appellant was examined under section 342, Cr.P.C.
wherein he once again professed his innocence. The appellant did not record his statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defence. On conc lusion of the trial the appellant was convicted in the aforesaid terms. Hence this appeal.
4. Learned counsel for the appellant contended that the appellant is innocent and has not
committed any offence whatsoever and he has falsely been implicated by the prosecution; that nothing has been recovered from the possession of the appellant and he has no concern with the alleged narcotics; that no independent witness was associated to established the charge against the appellant; that there is no evidence in res pect of ownership of the vehicle,
from which the alleged charas was recovered; that in the pictures appeared in the newspaper in respect of said recovery clearly shows that the case property was placed on the table in open shape at levies station and same has been admitted by PW- 2 in his cross -examination;
that the prosecution has failed to establish the charge against the appellant but the trial court without appreciating the material available on record in its true perspective and has wrongly convicted the appellant. He therefore urged for acquittal of the appellant.
5. Conversely, learned DPG defended the impugned judgment on the ground that the
appellant was apprehended when he was carrying the narcotics in the vehicle; that there is no personal grudge of the police with the appellants; that despite lengthy cross -examination, the
prosecution witnesses were not shaken and they remained firm on their deposition. He lastly urged for dismissal of the appeal.
6. We have heard learned counsel for the parties an d have also perused the record with
their able assistance. The perusal of record reveals the levies force conducted raid and recovered ten packets backed charas (total 100 kilograms charas) from the secret cavities of
the vehicle. The prosecution has produced three witnesses before the trial court. According to
prosecution after recovery of 100 packets of charas, ten grams from each packet were extracted and sealed into separate parcels for chemical analysis, while rest of the charas was sealed in a separat e parcel at the spot but during course of cross -examination the PW/2 in
reply to question states as under: -
7. Since according to the prosecution story the contraband were sealed at the spot but the
referred cross clearly negated the prosecution version, t hus such contradiction in the
statements of prosecution witnesses is enough to put question on the veracity of prosecution case. Reliance is placed on a case of Minhaj Khan v. State 2019 SCMR 326.
8. As far as the ownership of the vehicle is concerned, the prosecution has failed to
bring on record registration documents or to prove connection of the appellant with the
vehicle in question. Mere utter word of mouth is not enough to prove the nexus of the
appellant with the vehicle in question. In this regard reliance is placed on the case of Ghulam
Sarwar v. State 2015 PCr.L.J 1767.
9. The record further transpired that the FIR has been lodged on 18.01.2019 while the
sample has been received by the Forensic Science Laboratory Crimes Branch Balochistan, Quetta on 24.01.2019 after delay of six days without any explanation. Under such
circumstances, it cannot be reconciled from perusal of record that the alleged contraband article recovered on 18.01.2019, was remained in safe custody till its receipt to the Labor atory on 24.1.2019. The record is silent that during intervening period till its receipt by
the laboratory, in addition to a safe custody, whether the same was safely transported/transmitted and no tampering was committed or otherwise? Since, the prosecuti on case is hopelessly silent on this aspect of the case, therefore, chain of custody,
safe custody and safe transmissions are altogether missing, which creates serious doubts in the whole prosecution's case. Reliance is placed on a case of Khair -ul-Bashar v. State 2019
SCMR 930.
For the foregoing reasons, we are of the considered opinion that to the extent of
absence of full protocols to the tests applied, there was non- compliance of rule 6 of the
Rules. Further the safe custody and safe transmission of t he alleged seized contraband was
also not established, as such the instant appeal is allowed and the impugned judgment dated
08.04.2019 passed by the Model Criminal Trial Court/Special Judge Narcotics, Pishin is set
aside. Consequently, the appellant/accus ed namely Muhammad Deedar son of Niaz
Muhammad is acquitted of the charge. He is in judicial custody. He be released forthwith if
not required in any other case.
SA/94/Bal. Appeal allowed.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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