2024 M L D 1172
[Balochistan (Sibi Bench)]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
MURTAZA---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No(s). 08 of 2022, decided on 22nd September 2022.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Safe custody of samples not
proved--- Prosecution case was that 26 -kilograms charas was recovered from the vehicle of
the accused ---Record showed that neither the Moharrar of the police station was produced
before the Court nor his statement under S.161, Cr.P.C, was recorded by the Investigating
Officer ---Recovery was effected on 10.11.2021, whereas the sample parcels were received in
the laboratory on 13.11.2021, and the prosecution was silent as to where the said sample parcels remained during that period--- Meaning thereby that the element of tampering with
parcel was quite apparent in the case---Appeal against the conviction was allowed, in circumstances.
Muhammad Shoaib and another v. The State 2022 SCMR 1006; Qaiser Khan v. The
State through Advocate -General, Khyber Pakhtunkhwa 2021 SCMR 363; Mst. Razia Sultana
v. The State and another 2019 SCMR 1300; The State through Regional Director ANF v.
Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR
1002 and Amjad Ali v. The State 2012 SCMR 577 rel.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Delay of three hours in
lodging the FIR ---Consequential ---Prosecution case was that 26 -kilograms charas was
recovered from the vehicle of the accused ---Alleged occurrence took place on 10.11.2020 at
3:00 am and the FIR was lodged on 10.11.2021 at 8:00 am with a delay of five hours without
any explanation---Object of recording of murasilla or registration of FIR, apart from setting law into motion, was to provide a base for carrying out an investigation in the right direction---No doubt, there were no hard and fast rules regarding the duration of time consumed in the registration of FIR, but such prompt measure would rule out the possibility of deliberation, consultation and enquiry before furnishing the information---Element of delay in lodging the crime report was treated with caution because there was a tendency to involve innocent people during the interval ---Longer the intermission, greater the chances of false implication,
therefore, it was necessary for the prosecution to at least come forward with a plausible explanation for the delay caused---In the instant case, no such plausible explanation came on record for lodging the FIR with such delay--- Appeal against the conviction was allowed, in
circumstances.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Benefit of doubt ---
Contradictions in the statements of witnesses ---Prosecution case was that 26 -kilograms
charas was recovered from the vehicle of the accused ---Complainant, in his cross -
examination, stated that some quantity of the charas was recovered from the rear seat of the vehicle and some quantity was recovered from beneath the seat of the vehicle ---On the other
hand, recovery witness stated during cross -examination that the alleged charas was recovered
from the secret cavities of the back side of the seat ---During cross -examination, the
complainant stated that he and two other constables searched the vehicle ---On the other hand,
recovery witness stated during cross -examination that he and other witness conducted a
search of the vehicle--- Complainant stated during cross -examination that they reached the
place of occurrence at 1:00 am ---On the other hand, recovery witness stated that they reached
the place of the occurrence at 2:00 am ---Such material contradictions in the statements of
witnesses made the case of prosecution doubtful ---Appeal against the conviction was
allowed, in circumstances.
Jamil Akhtar Gajani, APG for State.
Date of hearing: 14th September, 2022
JUDGMENT
ROZI KHAN BARRECH, J. ---This criminal appeal is directed against the judgment
dated 30.06.2022 ("the impugned judgment") passed by the learned Special Judge
CNS/Sessions Judge Naseerabad at Dera Murad Jamali ("the trial court"), whereby the appellant Murtaza was convicted and sentenced under section 9 (c) of the Control of Narcotic Substances Act, 1997 ("the Act") for imprisonment for life with fine of Rs.1,00 000/ - or in
default thereof to further undergo simple imprisonment for six months with benefit of section 382- B Cr.P.C.
2. Brief facts of the case are that on 10.11.2021, the complainant of the case, namely
Imran Ahmed (PW -1), received information regarding the smuggling of narcotics through
Toyota Corolla Car bearing Registration No. LZV -4339 from Quetta towards Punjab, so,
acting upon such information, he along with other officials of PS Excise Dera Murad Jamali, arranged Naka Bandi near Rabi Canal on main Quetta road. At about 3:00 am, they spotted Toyota Corolla Car bearing Registration No. LZV -4339, which was coming from the Quetta
side, stopped, and a search of the vehicle led to the recovery of 26 kg of backed charas from the secret cavities of the car. The same was taken into possession through a recovery memo in the presence of witnesses. The driver of the vehicle disclosed his name Murtaza, son of Charagh Din. Hence, the crime report.
3. On completion of the investigation, the case was put in court, indicting the accused
for commissioning the offence to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case, produced and examined four witnesses in all, whereafter the statement of the accused was recorded wherein he professed his innocence. The learned trial court, on the conclusion of the trial, found the appellant guilty of the charge and, while recording his conviction, sentenced him as mentioned above, which he has impugned through the instant appeal.
4. Arguments heard and records has gone through.
5. Perusal of the case record would show that the very chain of events starting from the
crime spot to the Police Station regarding the dispatch and safe custody in the police malkhana of the representative samples has not been proved, which deficiency has dented the prosecution case. The most important thing we observe is that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned laboratory was established by the prosecution because neither the Moharrar of the said police station was produced before the court nor his statement under section 161 Cr.P.C was recorded by the Investigating Officer. It is also a circumstance that recovery was effected on 10.11.2021, whereas the sample parcels were received in the laboratory on 13.11.2021, and the prosecution is silent as to where remained the said sample parcels were during this period, meaning thereby that the element of tampering with is quite apparent in this case. The Hon'ble Supreme Court in the cases of Muhammad Shoaib and another v. The State (2022 SCMR 1006), Qaiser Khan v. The State through Advocate -General, Khyber Pakhtunkhwa,
Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above -mentioned defect on the part
of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond a reasonable doubt.
6. The alleged occurrence took place on 10.11.2020 at 3:00 am, and the FIR was lodged
on 10.11.2021 at 8:00 am with a delay of five hours without any explanation. The object of
recording of murasilla or registration of FIR, apart from setting law into motion, is to provide
a base for carrying out an investigation in the right direction. No doubt, there are no hard and fast rules regarding the duration of time consumed in the registration of FIR, but the such prompt measure would rule out the possibility of deliberation, consultation and enquiry before furnishing the information. The element of delay in lodging the crime report is treated
with caution because there is a tendency to involve innocent people during the interval. The
longer the intermission, the greater the chances of false implication; therefore, it is necessary
for the prosecution to at least come forward with a plausible explanation for the delay caused. In the instant case, no such plausible explanation came on record for lodging the FIR with such delay.
7. Now adverting to the contradictions in the statements of prosecution witnesses, which
could not be lightly ignored. For a disbelieving statements of witnesses, there did not need to be numerous infirmities. If there was one who would impeach a witness's credibility, then the witness's statement lost credibility. The complainant (PW -1), in his cross -examination, stated
that some quantity of the charas was recovered from the rare seat of the vehicle, and some quantity was recovered from beneath the seat of the vehicle. On the other hand, Misri Khan, Constable (PW -2), stated during cross -examination that the alleged charas was recovered
from the secret cavities of the back side of the seat. During cross -examination the
complainant (PW- 1), stated that he and two other constables searched the vehicle. On the
other hand, PW -2 stated during cross -examination that he and Ali Jan conddcted a search of
the vehicle. The complainant (PW -1) stated during cross -examination that they reached at the
place of occurrence at 1:00 am. On the other hand, PW -2 stated that they reached at the place
of the occurrence at 2:00 am. The above material contradictions in the statements of PWs further make the case of prosecution doubtful.
8. The crux of the above discussion is that the prosecution has not been able to bring
home the charge against the appellant beyond any shadow of doubt; therefore, it would not be safe to maintain the conviction and sentences awarded to him on such evidence and that too for the offence carrying capital punishment, thus, by extending the benefit of the doubt, the instant Criminal Jail Appeal No. (s) 08 of 2022 is allowed; consequently, the impugned judgment dated 30.06.2022 of conviction rendered by the learned Special Judge CNS/Sessions Judge Naseerabad at Dera Murad Jamali is set aside; the appellant, namely Murtaza, son of Charagh Din, is acquitted of the charge levelled against him. He be released forthwith if not required in any other case.
JK/48/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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