2025 P Cr. L J 732
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
MUHAMMAD NAEEM ---Apellant
Versus
The STATE--- Respondent
Criminal Appeal No. (T) 103 of 2021, decided on 25th November, 2021.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of charas ---Appreciation of evidence ---Recovery of the narcotic
proved---Prosecution case was that 2000 -grams charas was recovered from the
possession of applicant ---Record showed that the prosecution examined
complainant/Seizing Officer, marginal witness of recovery, in whose presence the
alleged charas was recovered from a plastic bag held by the accused, Head Constable/Head Moharar of the police station, who received parcels of case property and kept the same in Malkhana of the police station after registering the same in Register No. 19, Head Constable, who deposited the sealed parcel to Forensic Science Laboratory and obtained report, and the Investigating Officer ---All the said witnesses were
consistent on all material aspects ---No distinct discrepancy was noticed to spoil the
credibility of their testimony and they were subjected to cross -examination by the
defence but their testimony was not shattered---From the evidence, the mode and manner of arrest of applicant leading to the recovery of narcotic had been proved---Prosecution evidence was unanimous with regard to the arrest of the accused, place of the occurrence, quantity of the recovered charas, and to that extent, the evidence of the prosecution was also confidence inspiring ---Appeal against conviction was dismissed, in
circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Criminal Procedure Code (V of 1898), S. 103---Possession of charas ---
Appreciation of evidence ---Non -association of private witnesses ---Inconsequential ---
Prosecution case was that 2000- grams charas was recovered from the possession of
applicant ---Allegedly, no private person was joined in recovery proceedings except
Police Officials, which was a violation of S.103, Cr.P.C ---However, the application of
S.103, Cr.P.C had been excluded by S.25 of the Act, 1997, in narcotics cases ---
Moreover, the reluctance of the general public to become a witness in such like cases was a judicially recognized fact, and there was no option left but to consider the statement of an official witness as no legal bar had been imposed in that regard---In the present case, no proof of enmity with the complainant and the prosecution witnesses had been brought on record thus, in the absence thereof, the competence of prosecution witnesses being officials was rightly believed ---Moreover, the witnesses were not at all
questioned about any previous ill -will or enmity with the applicant, whereby they could
have been falsely nabbed and charged for the possession of the 2000- grams charas ---
Appeal against conviction was dismissed, in circumstances.
Zafar v. The State 2008 SCMR 1254 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of charas ---Appreciation of evidence ---Sample of the recovered
charas sent to laboratory for analysis within prescribed time ---Prosecution case was that
2000- grams charas was recovered from the possession of applicant ---Recovery of
alleged contraband was affected from the appellant on 15.05.2021 and the samples were received by the Forensic Science Laboratory on 18.05.2021, i.e. within the prescribed period---Report of Forensic Science Laboratory further proved that after conducting a
chemical test with a complete protocols, the same had been found as Hashish Pukhta ---
Nothing was on record to establish that the parcel was ever tampered with, rather, the
evidence led by the prosecution established that when the parcel was received by the said agency, it remained intact ---Appeal against conviction was dismissed, in
circumstances.
Waseem Naseem for Appellant.
Sudheer Ahmed, DPG for the State.
Date of hearing: 10th November, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .--- This Appeal has been filed under Section 48 of the
Control of Narcotics Substances Act, 1997 (hereinafter "the Act") against the judgment dated 04.11.2021 (hereinafter "the impugned Judgment") passed by the learned Special Judge CNS Makran at Turbat ("trial court") in case FIR No. 85 of 2021 registered under section 9(c) of the Act of PS City Turbat whereby the appellant Muhammad Naeem son of Abdul Qadir has been convicted under section 9(c) of the Act and sentenced to suffer Rigorous Imprisonment for 2 (two) years with fine of Rs.10,000/ - and in default whereof to further undergo Simple
Imprisonment for one month with the benefit of Section 382- B Cr.P.C.
2. Brief facts of the case are that on 15.05.2021, the complainant Raja Ahmed Khan SI
registered the aforesaid FIR with the allegation that on the said date, the appellant was
apprehended on suspicion, whereby on search from a plastic bag held in his hand two packets
of charas weighing 1000 grams each (total 2000 grams) were recovered which were sealed in
parcels in the presence of the witnesses. Hence, the crime report.
3. On completion of the investigation, challan of the case was submitted before the trial
Court, whereby he was charge sheeted to which he did not plead guilty and claimed trial. The
prosecution in order to substantiate its case, produced and examined five witnesses in all, whereafter the statement of the accused was recorded under section 342 Cr.P.C, wherein he professed his innocence. The accused neither recorded his statement on oath as envisaged under section 340 (2) Cr.P.C nor produced any witness in his defense.
4. The trial court, after the conclusion of the trial, found the appellant guilty of the
charge and, while recording his conviction, sentenced him as mentioned above. Hence, this appeal.
5. We have considered the worthy arguments advanced by the learned counsel for the
appellant as well as learned DPG and carefully scanned the material available on the record.
6. It has borne out from the record that 2000 grams Charas were recovered from
exclusive possession of the appellant, and same were taken into possession through recovery memo. and sealed into parcel on the spot.
7. While going through the prosecution evidence, especially the statement of Raja
Ahmed Khan SI (PW -1), who is complainant of the case and seizing officer, Abdul Wahid
Head Constable (PW- 2), who is the marginal witness of the recovery memo. (Ex.P/2- A) and
member of the police party. In his presence, the alleged Charas was recovered from a plastic bag held by the accused Zakir Ali, Head Constable (PW -3) is the Head Moharer of the police
station, who received parcels of case property and kept the same in Malk hana of the police
station after registering the same in Register No.19, Muhammad Raheem Head Constable (PW -4), who deposited the sealed parcel to FSL Laboratory Quetta and obtained the FSL
reports (Ex.P/5 -D and Ex.P/5- E), and Muhammad Jan Dashti SI (PW -5), who conducted the
investigation of the case. It transpires that all the above witnesses are consistent on all material aspects. No distinct discrepancy was noticed to spoil the credibility of their testimony, and they were subjected to cross -examination by the learned counsel of the
accused/appellant, but their testimony was not shattered. From the evidence, the mode and manner of arrest of appellant leading to the recovery of narcotic have been proved, the prosecution evidence is unanimous with regard to the arrest of the accused, place of the
occurrence, quantity of the recovered Charas, and to that extent, the evidence of the
prosecution is also inspiring confidence.
8. Adverting to the contention of the learned counsel for the appellant/accused that no
private person was joined in recovery proceedings except police officials, which is a violation of section 103, Cr.P.C. There appears no force in the contention of learned counsel as the application of section 103, Cr.P.C. has been excluded by section 25 of the Act, in narcotics cases. In the case of Zafar v. The State reported in (2008 SCMR 1254), the Hon'ble Supreme Court has held that: -
"Police employees are competent witnesses like any other independent witness and
their testimony cannot be discarded merely on the ground that they are police employees".
9. Moreover, the reluctance of the general public to become a witness in such like cases
was a judicially recognized fact, and there was no option left but to consider the statement of
an official witness as no legal bar had been imposed in that regard. In the instant case, no
proof of enmity with the complainant and the prosecution witnesses has been brought on
record thus, in the absence thereof, the competence of prosecution witnesses being officials was rightly believed. Moreover, the PWs were not at all questioned about any previous ill -
will or enmity with the appellant, whereby they could have been falsely nabbed and charged for the possession of the 2000 grams Charas.
10. The recovery of alleged contraband was affected from the appellant on 15.05.2021,
and the samples of the same were received by the FSL Laboratory on 18.05.2021 within the prescribed period. Furthermore, the report of FSL (Ex.P/5- D and Ex.P/5 -E) further proved
that after conducting a chemical test with a complete protocol (description thereof are
available in FSL report), the same had been found Hashish Pukhta. There is nothing on
record to establish that the parcel was ever tampered with, rather, the evidence led by the prosecution established that when the parcel was received by the said agency, it remained intact. Even Muhammad Rahim, Head Constable (PW -4) himself, deposited the parcels to the
FSL Laboratory Quetta. The name of PW -4 also appears in the FSL reports Ex.P/5- D and
Ex.P/5- E.
11. The reports of FSL (Ex.P/5- D and Ex.P/5 -E) further provided that after conducting a
chemical test with a complete protocol (description thereof are available in FSL reports), the same has been found Hashish Pukhta.
12. After having analyzed the prosecution evidence, we are of the candid view that the
prosecution has ably discharged the initial onus of proof. If once the prosecution leads ample evidence and discharge the initial onus of proof, then it is the accused who has to diminish the presumption of guilt against him as being a special law, section 29 of the CNSA 1997, gives rise to a presumption of guilt against the accused. In view of the recovery of huge quantity, we can safely observe that there is no possibility of false implication of the appellant in the offence entailing stringent punishment, especially in the absence of any proven enmity. We have noticed that in rebuttal to overwhelming prosecution evidence, the appellant has failed to produce any tangible material to rebut the trustworthy and confidenceinspiring evidence of the prosecution witnesses.
We are, thus, of the considered view that the prosecution has successfully established
the guilt of the accused/appellant, and he was rightly convicted by the learned trial court. The sentence awarded to the appellant duly commensurate with his Act. Resultantly this appeal fails and is dismissed. The conviction and sentence of the appellant is, thus, maintained.
JK/36/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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