2021 M L D 1168
[Balochistan (Sibi Bench)]
Before Jamal Khan Mandokhail, CJ, Muhammad Kamran Khan Mulakhail and Rozi
Khan Barrech, JJ
ALI BAKHSH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.(s) 20 of 2020, decided on 6th October, 2020.
(a) Control of Narcotic Substances Act (XXV of 1997) --
----S.9(c) ---Possession of forty kilograms of charas ---Appreciation of evidence ---Prosecution
case was that on spy information vehicle driven by accused was checked and 40 packets of charas were recovered from secret cavities of the vehicle, each packet weighing one kilogram, total 40 kilograms ---Prosecution produced recovery witness and complainant to
prove the charge ---Said witnesses remained consistent and firm regarding the recovery
effected f rom the accused, they were tested through lengthy cross -examination but their
evidence could not be shattered ---Apparently, sufficient evidence was available on record to
prove the guilt of the accused and he being a driver of the vehicle was in charge of the
vehicle and his culpability was established beyond the shadow of doubt ---Accused had taken
the stance in his statement recorded under S.342, Cr.P.C, that he was innocent and had falsely been involved into the case due to exchange of hot words with the SHO, but despite that he neither opted to record his statement under S.340(2), Cr.P.C, nor any evidence was produced by him in his defence ---Mere bald and general assertions were not sufficient to
discard the overwhelming prosecution evidence ---Accused was admittedly driving the car
from which the alleged narcotic was recovered ---Accused being the driver was well within
the knowledge about the concealment of narcotic in the vehicle ---Police Officials were
competent witnesses, and their evidence could not be discarded only for the reason that they
were Police Officials ---Police Officials had furnished straightforward and confidence
inspiring evidence ---Circumstances established that prosecution had proved its case against
the accused beyond any shadow of doubt ---Appeal against conviction was dismissed, in
circumstances.
Kashif Amir v. The State PLD 2010 SC 1052; Ghulam Qadir v. The State PLD 2006
SC 61 and Riaz Mian v. The State 2014 SCMR 1165 rel.
(b) Criminal trial ---
----Witness ---Police witness ---Scope ---Prosecution witness being Police Official by itself
could not be considered as a valid reason to discard his statement/evidence.
Zaffar v. The State 2008 SCMR 1254 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S.9(c) ---Control of Narc otic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---
Possession of forty kilograms of charas ---Appreciation of evidence ---Delay in sending
samples of contraband for chemical analysis ---Effect ---In the present case, alleged recovery
was effected on 09.11.2019, whereas the sample parcel was sent to the Chemical Examiner
on 11.12.2019---However, the delay was explained by the Investigating Officer and he stated
in his statement that on 10.11.2019 he wrote a letter to the high- ups of the police departm ent
for permission for sending the case property to Chemical Examiner's report, meaning thereby that the Investigating Officer had taken the initiative on the very next day of recovery from the accused for depositing the case property to the office of the Chemical Examiner ---Even
otherwise, there was nothing on record to establish that the said parcel was even tampered with, instead the evidence led by the prosecution established that the parcel received by the agency remained intact ---Circumstances establi shed that prosecution had proved its case
against the accused beyond any shadow of doubt ---Appeal against conviction was dismissed,
in circumstances.
Saleem Umer Rind for Appellant.
Jameel Akhter Gajani, DPG for the State.
Date of hearing: 25th Septemb er, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----Ali Bakhsh son of Madad Khan, the appellant
through the instant criminal appeal has called into question the judgment dated 5th February 2020 ("impugned judgment") rendered by learned Special Judge CNS Mach vide which the
appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "the Act") and sentenced to suffer life imprisonment with payment of Rs.100,000/ - as fine and in default whereof to further undergo S.I for s ix months. The benefit
of Section 382- B, Cr.P.C was also extended in favour of the appellant.
2. Brief and essential facts of the prosecution case are that on 09.01.2019 Pir Bakhsh
Bugti SI/SHO PS Saddar Mach District Kachhi (PW -1) received spy information that huge
quantity of Charas would be smuggled through a Pickup bearing registration No.AL -0640 to
Dhadar; that he along with other police officials of PS Saddar Mach put up a Naka Bandi at National Highway Shaheed Zahoor check -post; that at ab out 7:15 am the said vehicle came
from Quetta, which was stopped for checking; that on the query the driver of the vehicle disclosed his name name Ali Bakhsh, son of Madad Khan. During checking of the pickup 40 packets of charas were recovered from secrete cavities of the vehicle, each packet weighing 1
kilogram, total 40 kilograms, which were sealed and parcel No.1 was prepared. The charas and vehicle were taken into possession vide recovery memo, and the accused was arrested, and case FIR No.53 of 2019 (E x.P/5 -A) was registered against the appellant/accused.
3. The investigation was entrusted to SI Abdul Jabbar (PW -5). On completion of the
investigation, finding the accused/appellant involved in the crime, the investigation officer
challaned him to the tri al court. At the trial on the refusal of the appellant, the prosecution
produced its evidence. Thereafter the appellant was examined under section 342 Cr.P.C who denied and dismissed each piece of prosecution evidence and claimed innocence. However,
findin g the evidence of prosecution worthy of credence, the trial court convicted and
sentenced the appellant as noted above.
4. We have heard the learned counsel for the appellant, learned DPG for the State and
have gone through the record with their able assis tance.
5. While going through the prosecution evidence, especially the statements of Abdul
Malik Head Constable (PW- 2) the recovery witness and Pir Bakhsh SI/SHO (PW -1) the
complainant, we are of the considered view that both these witnesses remained consi stent
and firm qua the recovery effected from the appellant. Though they were tested through
lengthy cross -examination but their evidence could not be shattered. Apparently, sufficient
evidence is available on record to prove the guilt of the appellant and he being a driver of the
vehicle was in charge of the vehicle and his culpability is established beyond the shadow of a doubt. Though he has taken the stance in his statement recorded under section 342, Cr.P.C that he is innocent and has falsely been involved into the case due to exchange of hot words with the SHO, but despite that he neither opted to record his statement under Section 340(2), Cr.P.C nor any evidence was produced by him in his defense. Mere bald and general assertions are not sufficient to discard the overwhelming prosecution evidence. The appellant
was admittedly driving the car from which the alleged narcotics were recovered. He being the driver was well within the knowledge about the concealment of narcotics in the vehicle. Reference in this respect, if needed, can be made to Kashif Amir v. The State (PLD 2010 SC
1052), Ghulam Qadir v. The State (PLD 2006 SC 61) and Riaz Mian v. The State (2014 SCMR 1165).
6. As regards the argument of learned counsel for the appellant with regard to viol ation
of section 103, Cr.P.C it would be appropriate to refer Section 25 of the Act, which reads as under:
"25. Mode of making searches and arrest: ---The provision of the Code of Criminal
Procedure, 1898, except those of section 103, Cr.P.C shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest, searches made under these sections."
A bare perusal of above section would reveal that the applicability of section 103,
Cr.P.C. in the narcotics cases has been excluded and non -association of any private person as
a witness is not a serious defect to vitiate the conviction. So far the evidence of police officials is concerned, they are comp etent witnesses, and their evidence cannot be discarded,
only for the reason that they are police officials. They have furnished straightforward and confidence inspiring evidence. It is a settled principle of law that the prosecution witnesses being police officials by itself cannot be considered as a valid reason to discard their
statements/evidence. The reference in this context is made to the case of Zaffar v. The State
(2008 SCMR 1254), the Hon'ble Supreme of Pakistan has held that -
"Police employees are the competent witnesses like any other witnesses and their
testimonies cannot be discarded merely on the ground that they are police officials."
7. It has been argued before us that the report submitted by the Chemical Examiner did
not mention necessary protocols followed or the test applied, but we have seen the said report
available on the record of the trial court. (Ex.P/5- C) and have found that the said report not
only referred the protocols adopted but also all the tests applied, and, thus, we have not been able to find any deficiency in the said report.
8. The next contention of learned counsel for the appellant is that the recovered charas
was not safely transmitted to the office of the chemical examiner. Suffice is to say that the prosecution has examined PW.3 Wazir Ahmed. According to him on 9- 11-2019 he was
posted as Head Moharer. The investigation officer handed over Parcel No.1 of 40 Kilograms of charas to him and he being in charge of Malkhana kept the said parcel in safe custody and on 11.12. 2019 on the direction of SI/SHO Pir Bakhsh Bugti he sent the parcel No.1 to the
chemical examiner and handed over to ASI Ali Ahmed. The prosecution produced ASI Ali Ahmed as PW- 4, he stated in his statement that on 11.12.2019 through Mad number 15 the
parcel No.1 of 40 kilograms of charas was handed over to him by the SHO for depositing the same in the office of the chemical examiner Quetta and on the same day, he deposited the property in the officer of the chemical examiner after obtaining the receipt, which shows that the property was safely transmitted to the office of the chemical examiner and the officer of the chemical examiner received the case property in sealed condition. Hence, the contention of learned counsel for the appellant that it was not tr ansmitted safely to the office of
chemical examiner has no force.
9. Now addressing the question of delay in transmission of the sample parcel to the
office of the chemical examiner. It is noted that the alleged recovery was effected on 09.11.2019, whereas the sample parcel was sent to the chemical examiner on 11.12.2019.
However, the delay was explained by PW- 5 Abdul Jabbar SI, the investigation officer and he
stated in his statement that on 10.11.2019 he wrote a letter to the high- ups of the police
depart ment for permission for sending the case property to chemical examiner's report.
Meaning thereby, that the investigation officer has taken the initiative on the very next date of recovery from the appellant for depositing the case property to the office of the chemical
examiner.
10. Perusal of Rules 4 and 5 of the Control of Narcotic Substances (Government
Analysts) Rules, 2001 reveals that the said Rules do not put any bar on investigating officer to send samples beyond seventy- two hours of seizure of subs tance. Such rules are directory
and not mandatory and could not control substantive provisions of Control of Narcotic Substances Act, 1997, which were to be applied in such a manner that their operation did not frustrate the purpose of Control of Narcotic Substances Act, 1997. Thus, failure to follow the
said rules does not render the seizure of the alleged substance as an absolute nullity. Even otherwise, there is nothing on record to establish that the said parcel was even tampered with instead the eviden ce lead by the prosecution established that the parcel received by the
agency remained intact. To this effect the statement of PW- 3 Wazir Ahmed and PW- 4 ASI
Ali Ahmed went un -rebutted. Therefore, the prosecution successfully established the safe
custody and transmission of the case property to the office of the chemical examiner.
Considering the above facts and circumstances, we are of the view that prosecution
has succeeded to bring the guilt of the accused/appellant at home and has proved its case
agains t the appellant beyond any shadow of a doubt. Learned counsel for the appellant has
failed to point out any material illegality or serious infirmity committed by the trial court while passing the impugned judgment, which in our humble view, is based on pro per
appreciation of evidence and same does not call for any interference. Accordingly, the instant Criminal Appeal No.(S) 20 of 220 being devoid of merit is dismissed.
JK/247/Bal.
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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