2025 M L D 1334
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
ALI RAZA--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 77 of 2023, decided on 7th September, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Entire recovery
of narcotic substance doubtful ---Prosecution case was that 41 -kilograms baked charas was
recovered from the secret cavities of the vehicle driven by the appellant ---Recovery
witness produced parcel No.1, pertained to the sample of narcotics weighing 8200 grams,
whereas parcel No.2 pertained to remaining 32800 grams of narcotics ---Parcel No.1
pertaining to the sample of narcotics weighing 8200 grams was sent to Federal Narcotics Testing Laboratory, which was chemically tested and analyzed, where in the process of testing 500 grams of charas was consumed and remaining 7700 grams was returned back, but recovery witness while testifying before the Court categorically stated that parcel No. 1
contained 8200 grams of charas and produced the same, which was astonishing, making his statement cloudy, whereof no explanation had been offered by the prosecution--- More -so,
in the instant case, although separate sample had been drawn, but consolidated sample of 8200 grams were put in parcel No.1 and sent to Federal Narcotics Testing Laboratory, henceforth, in the attending circumstances only one kg charas could be considered to have been recovered from the appellant ---Circumstances established that the prosecution had
failed to prove the charge against the appellant beyond any shadow of doubt ---Appeal
against conviction was allowed, in circumstances.
Ameer Zeb v. The State PLD 2012 SC 380 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Secret
cavities of the vehicle not established ---Prosecution case was that 25 -kilograms baked
charas was recovered from the secret cavities of the vehicle driven by the accused ---
Recovery witness during cross -examination admitted that there was no access to the
cavities from the flooring part of the vehicle ---Trial Court during inspection of the
vehicle noted and observed that there was a small access, which went toward the engine of the vehicle, however, categorically stated that it did not go toward any secret cavity---Prosecution seemed to have failed to demonstrate that where and how the secret cavities were made and narcotics were concealed therein ---Circumstances established that the
prosecution had failed to prove the charge against the appellant beyond any shadow of doubt ---Appeal against conviction was allowed, in circumstances.
Aslam Khan v. State 2021 PCr.LJ 1018; Muhammad Sajjad v. State 2023 YLR 408;
Ahmed Ali v. The State 2023 SCMR 781 and Abdul Baqi v. State 2020 PCr.LJ 321 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Safe custody
of recovered substance and its safe transmission to the laboratory not proved---Prosecution case was that 41 -kilograms baked charas was recovered from the secret
cavities of the vehicle driven by the accused ---Prosecution in order to establish the safe
custody and transmission of the narcotic mainly relied upon the statement of Malkhana Incharge, who testified that the Investigating Officer handed over him parcel Nos.1 & 2, registration book of the vehicle and other articles recovered from the personal
possession of the appellant, which were handed over back to a prosecution witness for
chemical analysis ---Said witness neither mentioned that he made entry of the recovered
articles in Register No.19 nor produced the extract and copy of the said register ---Said
witness admitted that he had not mentioned in his statement recorded under S.161 of Cr.P.C about the register No. 19 or making any entry therein and also admitted that the
parcels did not contain any number when the same were handed over back to him ---
Circumstances established that the prosecution had failed to prove the charge against the
appellant beyond any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
Ahsan Rafiq Rana for Appellant.
Jameel Akhtar Gajani, A.P.G for the State.
Date of hearing: 24th August, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Being dismayed, appellant Ali Raza has
brought before us the captioned appeal, whereby he has impugned the judgment dated 18.05.2023 ("impugned judgment") rendered by learned Additional Sessions Judge - CNS
Court, Dera Allah Yar ("Trial Court"), whereby he was convicted and sentenced under Section 9 (c) of Control of Narcotic Substances Act of 1997 ("Act of 1997") to suffer life imprisonment R.I with a fine of Rs.100,000/ - (One hundred thousand) and in default of
payment of fine to further undergo six (06) months S.I with the premium of Section 382- B of
Cr.P.C, emanating from a case vide FIR No.06/CH/2022 (Ex.P/1 -A) registered with Excise
Station, Dera Allah Yar by complainant Saifullah IP (PW -1) against the appellant for
possessing forty one (41) kgs of baked charas recovered from the secret cavities made in the rear body of Suzuki pick- up.
2. Factual matrix of the prosecution case are that on 28.10.2022 complainant
Saifullah IP (PW -1) along with Excise contingent, at about 5:00 pm, carried blockade at
Quetta Dera Allah Yar and intercepted a Suzuki Pick -up bearing Registration No.GAS -
1850 being driven by the appellant, whereupon on search recovered 41 kgs of baked charas from the secret cavities made in the rear body of the vehicle, whereof 200 grams from each packet, total 8200 grams were separated for chemical analysis and sealed in parcel No.1, whereas the remaining charas weighing 32800 grams were put in parcel No.2.
After necessary investigation, the appellant was sent up to the Trial Court to face
deeds of his culpability, where on commencement of the trial, the appellant entered the plea of denial, thus, the prosecution in order to bring home the charge, produced as many as five witnesses, and after close of the prosecution side, the appellant refuted the allegations so brought as envisaged under section 342 of Cr.P.C, whereafter, neither he stepped into the witness box to depose on oath nor produced any evidence in his defence, hence on conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in para supra.
3. Learned counsel for the appellant inter alia contended that the prosecution has
neither proved the recovery of the narcotics nor its safe custody and transmission, but the Trial Court has recorded the conviction for the reasons contrary to the evidence available on record. He added that there are material contradictions in the statements of the witnesses, which has made the recovery of narcotics highly doubtful, but the Trial Court has failed to appreciate such aspect of the case. On the basis of above illegalities, learned counsel for the appellant, prayed for acquittal of the appellant.
On the other hand, learned APG resisted and vehemently opposed the contentions
put-forth by the learned counsel for the appellant. He urged that prosecution has
successfully proved the recovery of the narcotics from the possession of the appellant and above all, the prosecution has also proved the safe custody and transmission of the
narcotics through tangible evidence, which has rightly been appreciated by the Trial Court
while drawing the impugned judgment, thus requested for dismissal of the appeal.
4. Heard. Record vetted.
5. Saifullah IP (PW- 1) is the Seizing Officer, who testified that on 28.10.2022, he
along with other personnel of Excise Department at 5:00 pm, intercepted a Suzuki Pick -
up bearing Registration No.GAS -1850 and got recovered forty one (41) kgs of charas
from the cavities made in the rear part of the pickup, whereof he extracted 200 grams
from each slab, weighing 8200 grams for chemical analysis and prepared parcel No.1 thereof, whereas the remaining 32800 grams of charas were put in parcel No.2 on the basis whereof FIR (Ex.P/1 -A) was registered. Recovery witness Jaffar Ali (PW -2)
reiterated the statement of Seizing Officer (PW- 1) and produced the recovery memo of
charas as (Ex.P/2 -A). He produced parcel No.1, pertaining to the sample of narcotics
weighing 8200 grams as Art.P/2 -4, whereas parcel No.2 pertaining to remaining 32800
grams of narcotics as Art.P/2 -5-. The registration book of the vehicle secured through
recovery memo as Ex.P/2- B and Suzuki pickup secured through recovery memo as
Ex.P/2- C were produced by him and same were exhibited as Art.P/2- 6 to Art.P/2- 7. He
also produced the memo of personal search as Ex.P/2- D and disclosure memo as Ex.P/2 -
E. His statement was recorded on 24.01.2023, whereas parcel No.1 pertaining to the
sample of narcotics weighing 8200 grams were sent to Federal Narcotics Testing
Laboratory Balochistan, Quetta ("FNTL, Quetta") on 29.10.2022, which were chemically
tested and analyzed, where in the process of testing 500 grams of charas were consumed and remaining 7700 kgs were returned back, but recovery witness Jaffar Ali (PW -2),
while testifying before the Court categorically stated that parcel No.1 contained 8200
grams of charas and produced the same as Art.P/2 -4, which is astonishing, making his
statement cloudy, whereof no explanation has been offered by the prosecution. More -so,
in the instant case, albeit separate sample has been drawn, but consolidated sample of
8200 grams were put in parcel No.1 and sent to FNTL, Quetta, henceforth, in the
attaining circumstances only one kg charas can be considered to have been recovered
from the appellant in view of the dictum expounded in the case of "Ameer Zeb v The
State" (PLD 2012 SC 380), wherein it was held that from each packet a separate sample must be secured for chemical analysis and if such protocol is not observed then the consolidated sample drawn from each packet shall represent only one packet of narcotics.
6. Regarding secret cavities, recovery witness Jaffar Ali (PW- 2) during cross -
examination admitted that there is no access to the cavities from the flooring part of the pick -
up. The Trial Court during inspection of the pick- up noted and observed that there is a small
access, which goes towards the engine of the vehicle, however, categorically stated that it does not go towards any secret cavity. The prosecution seems to have failed to demonstrate that where and how the secret cavities were made and narcotics were canceled therein. To fortify the above view, we would like to place reliance upon the judgments titled as "Aslam Khan v. State" (2021 PCr.LJ 1018) and "Muhammad Sajjad v State" (2023 YLR 408), wherein, albeit car was produced but the prosecution failed to produce and get identify the cavity made in the fuel tank and as such the recovery was disbelieved. For ease of reference, the relevant portion of 'Aslam Khan's case reads as under;
"Even during trial the alleged fuel tank has not been produced before the court for
exhibition of the same in support of prosecution case, so when the fuel tank from
which the contraband was recovered has not been produced, then how it could be proved that the contraband was recovered from the same. It is also not mentioned anywhere that how and through which tool, the said fuel tank was opened as
according to PW.5 Lal Gul SI, the contraband was in shape of slabs, so how it was
recovered from the fuel tank having a small hole.
[Underline is ours]
Likewise, the relevant excerpt of 'Muhammad Sajjad's case supra is reproduced as
infra;
"6. Likewise, the petrol -tank from which the illegal stuff was allegedly recovered was
neither produced before the court nor it was exhibited to confirm as to whether it was
having the capacity to contain such a huge quantity of narcotics, which aspect of the case also makes the story of prosecution doubtful,"
[Emphasis added]
Similarly, the view supra was endorsed too in the cases of "Ahmed Ali v The State"
(2023 SCMR 781) and "Abdul Baqi v. State" (2020 PCr.LJ 321).
7. The prosecution in order to establish the safe custody and transmission of the
narcotics mainly relies upon the statement of malkhana Incharge Hafeezullah Constable
(PW -3), who testified that on 28.10.2022, while he was present in the malkhana, Javed
Ahmed IO (PW -5) handed over him parcel Nos.1 and 2, registration book of Suzuki pick- up
and other articles recovered from the personal possession of the appellant, which were handed over back to Hairbayar Constable (PW -4) on 29.10.2022 for chemical analysis. He
neither mentioned that he made entry of the recovered articles in Register No.19 nor produced the extract and copy of the said register. As is suggested and confronted by defence, he admitted that he has not mentioned in his statement recorded under section 161 of Cr.P.C about the Register No.19 or making any entry therein as well as admitted that the parcel did not contain any number when the same were handed over back to him.
As far as the disclosure of the appellant is concerned, the same has been critically
examined by us, which does not fall within the purview of Article 40 of Qanun- e-Shahadat
Order, 1984 ("QSO of 1984"), rather it is hit under Articles 38 and 39 of the QSO of 1984, as the recovery admittedly has not been effected in consequence of the disclosure, but pertains to the facts relating after the recovery. Henceforth, the disclosure is discarded straight -away
for being inadmissible and having no evidentiary worth.
8. Upshot of the above discussion is that the prosecution has miserably failed to prove
the indictment without any shadow of doubt and the reasons of conviction drawn by the
learned trial judge are contrary to the evidence on record.
9. For what has been discussed hereinabove, the appeal is allowed, and in consequence
thereof the impugned judgment dated 18.05.2023 passed by the Trial Court is set aside and
appellant Ali Raza son of Jagdy is acquitted of the indictment.
The appellant serving sentence be set free, if not incarcerated in any other case.
JK/34/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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