2011 P Cr. L J 1899
[Quetta]
Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ
KHALIQUE DAD alias JAN AGHA ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 361 of 2008, dec ided on 1st August, 2011.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c), 21 & 25 ---Criminal Procedure Code (V of 1898), S.103 ---Possessing
contraband narcotics --- Appreciation of evidence ---Prosecution had successfully
established th e recovery of contraband material from the house of accused ---Objection
that the recovery had been made in violation of the provisions of S.103, Cr.P.C. as no
search warrants had been taken in the matter, gave no help to accused ---Under the
provisions of S .25 of the Control of Narcotic Substances Act, 1997, application of S.103,
Cr.P.C. had been excluded ---Neglecting provisions of S.21 of the Control of Narcotic
Substances Act, 1997, which were directory in nature and not mandatory, would not
throw the enti re proceedings of recovery out of consideration, particularly when none
from the raiding party had been shown having any enmity against accused ---No specific
or significant contradiction was noticed in the statements of prosecution witnesses, which
could d iscredit or disbelieve their evidence ---Prosecution evidence was in consonance,
corroboratory and had no defect at all ---No dent had been caused to the evidence of
prosecution witnesses from defence side ---No misreading and non -reading of evidence
was foun d in the case ---No defect or lacuna having been noticed in the judgment of the
court below, same could not be interfered with, in circumstances.
2007 YLR 3087; 2008 YLR 985; 2006 PCr.LJ 58; 2006 PCr.LJ 988 and 2003
SCMR 54 ref.
2005 MLD 1718 and 2005 PC r.LJ 1858 rel.
Muneer Ahmed Langove for Appellant.
Abdul Ghias Nousherwani, P. -G. for the State.
Date of hearing: 20th July, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J. ---The appellant, Khalique Dad alias Jan Agha son
of Agha Muhammad, has challenged the judgment dated 6 -12-2008 of the Special Judge,
CNS, Quetta, through which, the learned Special Judge, CNS, Quetta, convicted and
sentenced him under section 9(c) of the Control of Narcotic Substances Act, 1997, for the
possession of the contraband narcoti cs to suffer R.I. for life imprisonment with the fine of
Rs.100,000. In default of fine, he was ordered to further suffer S.I. one year. The benefit
of section 382 -B, Cr.P.C. also has been extended in his favour.
2. Brief facts leading to file, the present Criminal Appeal are that, on 26 -1-2007, the
I.P., S.H.O./D.S.P., Sardar Tariq Manzoor, lodged an F.I.R. at Police Station Sariab,
Quetta, vide Marasla "Exh.P/2 -A", alleging that, he got a credible spy information that,
the appellant, Khalique Dad alias Ja n Agha son of Agha Muhammad, was doing business
of the narcotics and presently, a huge quantity of narcotics, lying in one of the rooms of
his house.
3. After receiving the information, the I.P./S.H.O. under the supervision of
SDPO/DSP organized a raiding party, consisting upon ASI Abdul Rauf, Mushtaq Ahmed,
Manzoor Ahmed, Muhammad Anwar, Juma Khan and other officials including Driver,
Muhammad Ayub. He also took lady constable, Zohra Bibi, with them and at about 9 -10
p.m., they raided to the house of the a ppellant, Khalique Dad, where, he was found
present and in his presence, the house was searched and a jute sack was recovered from a
ditch of a room. When the bag was opened, 14 kg. of baked hashish, 20 kg. and 800
grams raw hashish including 4 kg. of Opiu m were recovered from the jute sack. The
appellant was arrested, whereas, the samples were taken from the each of the contraband
material and then were sealed/parceled.
4. After the registration of the F.I.R. and on conclusion of the investigation, the
matter was sent to the Special Judge, CNS, Quetta, for trial, who, on 27 -2-2007, framed
the charge against the appellant, to which, he pleaded not guilty and claimed trial.
The prosecution produced four witnesses i.e. Mushtaq Ahmed ASI P.W.1, Tariq
Manzoor D SP P.W.2, Muneer Ahmed A.S. -I. P.W.3 and Ghulam Fareed Buzdar S. -I.
P.W.4.
5. Mr. Muneer Ahmed Langove, Advocate, present for appellant while Mr. Abdul
Ghias Nosharwani, Prosecutor -General, present for the State.
6. Learned counsel for the appellant mainly contended that, the appellant is innocent
and wrongly has been involved in the matter. The contraband narcotics were recovered
from one, Agha Sultan, who was an Afghan refugee, but the police let the real culprit and
involved the appellant in the matter. The police in violation of the provisions of section
103, Cr.P.C. conducted the raid to the house of the appellant and failed to associate any
independent witness from the locality. Moreover, as the police had prior information
about the presence of narcot ics, but he in violation of law did not take any search warrant
and conducted search of the house. There are contradictions and discrepancies in the
evidence of witnesses, but the same were neglected and a wrong and illegal judgment was
passed. No any samp le was taken from each rod, so as, the material was sent for analysis
after a considerable delay. So being, the proceedings conducted wrongly and on the basis
of wrong proceedings and legal flaws, the appellant was convicted in the matter, which is
liable to be set aside. The learned counsel, in support of his contention, relied upon YLR
2007 (3087) , YLR 2008 (985) and PCr.LJ 2006 Karachi (58) .
7. The learned State counsel Mr. Abdul Ghias Nosherwani, Prosecutor -General,
supported the impugned judgment and c ontended that, the objections of the counsel for
the appellant having no any force and non -association of two respectable persons of
locality, in the search and recovery proceedings, especially, have been excluded under the
provisions of section 25 of the Control of Narcotic Substances Act, 1997. In this respect
the learned State counsel relied upon PCr.LJ 2006 Peshawar (988) . The learned State
counsel further argued that, there are no any specific contradictions or discrepancies in
the evidence of the P.Ws ., which could be considered fatal for the prosecution case.
8. Again, the learned State counsel argued that, the impugned judgment did not
suffer from any misreading or non -reading of the evidence. Thus, the Special Judge, CNS,
Quetta, rightly has convict ed the appellant under the law, which requires no any
interference. In this respect, the learned State counsel relied upon SCMR 2003 (54) .
9. We have heard both the sides and perused the impugned judgment in the light of
the case record and we are of the v iew that, there is no any weight in the objection of the
learned counsel for the appellant. No doubt, the prosecution has successfully established
the recovery of contraband material or narcotics, weighing 14 kg. of the baked hashish,
20 kg. and 800 grams raw hashish including 4 kg. of Opium from the house of the
appellant.
10. The objections that, the recovery has been made in violation of the provisions of
section 103, Cr.P.C. or so as, no any search warrant has been taken in the present matter,
gives no help to the appellant. As admittedly, under the provision of 25 of the Control of
Narcotic Substances Act, 1997, the application of section 103, Cr.P.C. has been excluded,
so as, the provisions of section 21 in respect of search and seizure are directory n ature
and are not mandatory, therefore, only neglecting provisions of section 21 of the Control
of Narcotic Substances Act, 1997, do not throw the entire proceedings of recovery out of
consideration, particularly, when none, from the raiding party had been shown having any
enmity against the appellant/convict. In this respect we have fortified our view from MLD
2005 (1718) and so as PCr.LJ 2005 (1858) .
11. We have also given our anxious thought to the objection of the learned
counsel that, ther e are contradictions in the prosecution evidence and moreso, no any
sample has been taken from the rods of the hashish, however, we are of the view that, the
above objections of learned counsel gets no support from the case record. The statement
of P.W.2 Tariq Manzoor, shows that, Seventeen (17) packets of baked hashish consisting
upon rods including other contraband materials have been recovered from the possession
of the appellant, samples have been collected from hashish, raw hashish and opium
separatel y while the whole rods sent for analysis. So being, the objection of counsel in the
circumstances of the case, having no any weight, whereas, on our consideration to the
evidence, we see no any specific or significant contradictions in the statements of P. Ws.,
which could discredit or disbelieved their evidence. On contrary, we are of the view that,
the prosecution evidence is in consonance, corroboratory and having no any defect at
all. The evidence of the P.W.1 Mushtaq Ahmed, the evidence of P.W.2 Tariq
Manzoor, so as, the evidence of other material witnesses seems convincing one
and worthy of credit, no any dent has been given to the evidence of P.Ws. from
the defence side. The objection that, an Afghan Refugee was arrested and left by the
prosecution, on our perusal of record, we also failed to see any such material, however,
the newspaper on which, the appellant is relying, in our view, the said point also goes
against the appellant, as he also has been seen i n the picture, arrested as an accused.
Whereas, it has come on record that, the second person, who was the father of the
appellant and perhaps, he had no any role in connection of contraband materials, as such,
he was not implicated in the matter.
With t he above discussed circumstances, we find no any mis -reading and non -
reading of the evidence. Again we see no any defect or lacuna in the judgment of the
learned Judge, CNS, Quetta, therefore, we refrain to interfere in the impugned judgment.
With the abov e, this appeal is failed and is dismissed.
H.B.T./81/Q 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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