2023 M L D 285
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
Syed HIDAYATULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 273 of 2021, decided on 14th October, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Benefit of doubt ---
Prosecution case was that 15 Kg charas was recovered from the secret cavity of vehicle
driven by the accused--- Contradictions were found in the statements of witnesses ---Safe
custody and transmitting of samples of narcotic from police to the FSL was not established---Neither the secret cavity was taken into possession separately after un -assembling the vehicle
nor was produced before the Court for its examination---Appeal was allowed and accused was acquitted of the charge.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6--
-Possession of narcotics ---Appreciation of evidence ---In the present case, the protocols as
envisaged under Rr. 5 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 were not followed ---FSL report was inconclusive as neither quadruplicate copies of
FSL report were prepared nor the requisite test for determining the material to be charas were undertaken--- Prosecution had failed to prove the case beyond any glimpse of doubt, thus, the
appeal was allowed and impugned judgment passed by Trial Court was set aside and consequently, the accused was acquitted of the charge.
Imam Bakhsh v. The State 2018 SCMR 2039; Zubair Khan v. The State 2021 SCMR
492 and Khair -ul-Bashir v. The State 2019 SCMR 390 ref.
(c) Criminal trial ---
----Benefit of doubt ---Scope ---Benefit of doubt is a universal law, thus if it arises in a case, it
must be extended to the accused as it is better to err in acquitting 99 culprits than to convict an innocent.
Khalil Ahmed Panezai for Appellant.
Yahya Baloch, Additional Prosecutor General for the State.
Date of hearing: 24th August, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Being dismayed, Syed Hidayatullah has
brought the captioned appeal, whereby, he has impugned the judgment dated 31.05.2021
("impugned judgment") drawn by learned Special Judge of the Court constituted under the Control of Narcotic Substances Act, 1997, Khuzdar ("Trial Court"), whereby, appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 ("Act of 1997") and sentenced to suffer life imprisonment with fine of Rs.100,000/ - and in default whereof to
further undergo six months' SI, having premium of benefit of Section 382- B of Criminal
Procedure Code, 1898 ("The Code") in a case bearing FIR No.68/2020 dated 26.10.2020
(Ex.P/5 -A) registered with Levies Station Baghbana, for having been found in possession of
15 Kgs of charas concealed in fuel tank of the car.
2. Relevant facts transpires that a 2.OD car bearing Registration No.AUW -950 driven by
Hidaytullah, the appellant was stopped at Zada check post at 6:50 pm coming from Quetta
towards Karachi and from the fuel tank of the car 15 packets charas were recovered, whereof murasila (Ex.P/1 -A) was handed over to the I.O. Shahid Aslam Resaldar (PW.5) along with
narcotic so recovered, wherefrom 10 grams for the purpose of samples were separated from each packet and sealed in parcels Nos.1 to 15 and remaining charas were put in a parcel bearing No.16, whereof memo (Ex.P/2- A) was prepared. The vehicle was secured through
memo (Ex.P/2 -B), whereas, the articles recovered from the personal search of the appellant
was taken into possession through recovery memo (Ex.P/2 -C). I.O. (PW -5) prepared site plan
and received the FSL report (Ex.P/5- D) on 28.11.2020.
3. The appellant was sent to the trial court, where after denial of the charge, prosecution
got examined five witnesses and after close of the prosecution side, when appellant was confronted with the allegations, he entered into the plea of denial, but did not opt to adduce defence, thus, the trial court concluded a verdict of guilt and convicted and sentenced the appellant in the above terms.
4. Learned counsel for the appellant inter alia contended that the prosecution has failed
to bring home the charge against the appellant. Added further that the prosecution has miserably failed to discharge the burden of proof of safe custody and transmission of the contraband allegedly recovered from the appellant; the infirmities committed by the prosecution witnesses during the recovery and sending the narcos to FSL highlighted by learned counsel for the appellant shall be discussed in detail, while parting with the judgment.
On the other hand, learned APG controverted the contentions so put forth by learned
counsel for the appellant and urged that none of the provisions of law ibid have been violated while making recovery of the narcotics. He maintained that the impugned judgment does not suffer from any infirmity, illegality or misreading of evidence, thus, the appeal merits
dismissal.
5. Heard. The evidence and the impugned judgment have been pondered upon with due
care and caution. Nasrullah Dafedar (PW- 1) testified that on 26.10.2020, while he along with
levies personnel was present at Zada check post, checking various vehicles when he received
a spy information regarding 2.OD vehicle, wherein narcotics were reported to be smuggled. He maintained that at 6:50 pm the said 2.OD car white in colour was stopped at the Check post driven by the appellant and upon checking, from the secret cavities made in fuel tank of the vehicle 15 packets charas were recovered, besides recovery of mobile, running page of book and CNIC, whereupon he called Naib Tehsildar Baghbana, who sent Shahid Aslam I.O. (PW -5), whom he handed over the murasila (Ex.P/1- A) as well as the accused, the vehicle
and the recovered contraband etc. During cross -examination he replied that spy gave the tip
off at 3 O'clock and that thereafter till 6:50 pm in the evening they searched several vehicles; stated that he had himself stopped the vehicle. He testified that the secret cavities was 3 x 3 feet in size and the petrol was also in said vehicle and after handing over the murasila and the contrabands, he did not go to Baghbana including his collogues Abdul Hameed (PW -2) and
Ali Akbar. He denied that besides appellant, his family members were with him. He showed ignorance that the recovered car ply on Quetta- Karachi route. He denied that actually the
driver of the car was let to go and the appellant was involved in the instant case.
6. Abdul Hameed Levies Constable (PW- 2) is the recovery witness, who stated that on
26.10.2020, he along with Inchage check post Nasrullah Dafedar (PW -1) and constable Ali
Akbar were present at Zada check post, when at 6:50 p.m. 2.OD car bearing Registration No.AUW -950 driven by the appellant was intercepted and that from hidden cavities of the
fuel tank 15 Kg charas contained in 15 packets were recovered, which were taken into
possession through recovery memo (Ex.P/2- A), whereof 10 grams from each packets were
separated and parcel Nos.1 to 15 were made, whereas, remaining charas was sealed in parcel No.16. He produced the parcel No.16 as (Art. P/1), whereas, 15 packets were produced as (Art. P/1 to 15). He produced the car as (Art. P/18) and the mobile phone, running page and CNIC as (Art. P/20 to 22). During cross -examination he admitted that on parcel Nos.16 and
17 neither his signature nor date figures thereon. He denied that during arrest of appellant, the appellant was accompanying his wife and children as passengers, whereas, the driver was let to go and he was substituted for him.
7. Muhammad Younas Dafedar (PW -3) stated to be the Incharge of Malkhana Tehsil
Baghbana. He testified that on 26.10.2020, I.O. (PW -5) brought parcel Nos.1 to 17, which
were kept in the Malkhana. During cross -examination replied to a question suggested by
defence counsel that he (PW -3) stated that parcel Nos.1 to 15 were handed over to constable
Muhammad Tayyab (PW -4) on 06.11.2020. He denied that none of the said parcels were
deposited by him.
8. Muhammad Tayyab constable (PW -4) testified that on 05.11.2020, parcel Nos.1 to 15
were handed over to him by Incharge Malkhana Muhammad Younas (PW -3) for onward
transmission to FSL Karachi. According to him on 06.11.2020, he delivered the said parcels to FSL Karachi and received the FSL report on 27.11.2020, which was handed over to the I.O (PW -5) by him on 28.11.2020. In cross -examination he replied that he handed over the
parcels to one Minthar Ali. He admitted that he had not mentioned in his police statement
that parcel Nos.1 to 15, were handed over to him by Muhammad Younas Dafedar (PW -3) on
05.11.2020.
9. Investigating Officer Shahid Aslam Resaldar (PW -5) reiterated regarding handing
over the recovered 15 packets of charas weighing 15 Kgs along with 2.OD car bearing Registration No.AUW -950 and separation of samples of 10 grams from each packets secured
through memo (Ex.P/2 -A) and car along with other articles from personal search handed over
by Nasrullah Dafedar (PW- 1). He also stated that he handed over to parcel Nos.1 to 17 to
Incharge Malkhana Muhammad Younas Dafedar (PW -3). During cross -examination he
testified that that the murasila (Ex.P/1 -A) was sent to the levies station through driver and
that he weighed the contraband in the room of check post and he was helped by constables Ali Akbar and Abdul Hameed (PW -2). He maintained that on 06.11.2020, constable
Muhammad Tayyab took the parcel Nos.1 to 15 for chemical analysis, whereof permission was granted by the Deputy Commission on 04.11.2020. He admitted that he was told by the appellant that the driver has fled away and that he was travelling in the said vehicle along with his family members as passengers. He produced the FSL report as ((Ex.P/5- D).
10. The analysis of the evidence show that there are numerous infirmities in seizure of the
contraband, registration of the case, safe custody and its onward transmission from the place of recovery to the FSL at Karachi. PW- 1 during cross -examination admitted that the murasila
(Ex.P/1 -A) was handed over to I.O. Shahid Aslam Resaldar (PW -5) at the place of recovery,
whereas, I.O. Shahid Aslam Resaldar (PW- 5) stated that complaint PW -1 sent the murasila
through driver, while, he remained at the place of occurrence, which facts have been found to be in conflict. I.O. Shahid Aslam Resaldar (PW- 5) stated that he was in levies station
Baghbana when the FIR (Ex.P/5- A) was registered. He also stated that on 06.11.2020, parcel
Nos.1 to 15 were taken by constable Muhammad Tayyab for analysis, whereas, Muhammad Tayyab constable (PW -4) testified that on 05.11.2020, Malkhana Incharge Muhammad
Younas Younas (PW -3) gave him parcel Nos.1 to 15 for analysis for onward transmission to
FSL Karachi. There appears doubt as to whether the seizure proceedings including making of parcels were carried before registration of FIR or thereafter?
11. Undeniably, neither the secret cavity made in the fuel tank was taken into possession
separately after un - assembling nor was the same produced before the Court for its
examination by the trial court as well as by the parties, which further diminishes the evidence of prosecution in proving the recovery of the contraband, raising questions with regard its safe custody.
12. Nonetheless, the prosecution has failed to discharge its burden with regard to proof of
the material being charas within purview of guidelines enumerated in case of 'Imam Bakhsh v. The State' (2018 SCMR 2039) by not following the protocols as envisaged under Rules 5 and 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. The FSL report (Ex.P/5- D) is inconclusive as neither four quadruplicate copies of the FSL report were
prepared nor the requisite test necessary for determining the material to be charas were undertaken. In this regard, we are guided by the dictum expounded in the case of 'Zubair Khan v. The State' (2021 SCMR 492) and 'Khair -ul-Bashar v. The State' (2019 SCMR 930).
Benefit of doubt is a universal law, thus if arises in a case, that must be extended as it
is better to err in acquitting 99 culprits than to convict an innocent.
In light of the above, we are of the considered view that the prosecution has failed to
prove the case beyond any glimpse of doubt, thus, the appeal is allowed and the impugned
judgment dated judgment dated 31.05.2021, passed by learned Special Judge of the Court constituted under the Control of Narcotic Substances Act, 1997, Khuzdar is set aside and consequently, the appellant is acquitted of the charge.
The appellant be set free, if not incarcerated in some other case.
KI/183/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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