2 0 1 1 P C r . L J 31
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
SHABIR AHMED ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 36 of 2005, decided on 9th August, 2010.
Control of Narcotic Substances Act (XXV of 1997) ---
---Ss. 9(c), 21, 22 & 23 ---Possession of narcotics ---Appreciation of evidence ---Both the
accused were driving the vehicle from which the narcotic was recovered ---Accused
contended that an officer below the rank of Sub -Inspector could not effect recovery under
Ss.21, 22 and 23 of the Control of Narcotic Substances Act, 1997 ---Validity ---Naib Risaldar
committed no fault or irregular ity vitiating the proceedings as he acted in the absence of the
Risaldar with the permission of the Judicial Magistrate ---Any irregularity in the course of
investigation would not vitiate later proceeding unless such irregularity had the effect of
prejudic ing the case of any of the parties especially when accused failed to establish the mala
fide of the Investigating Officer ---Witnesses of recovery corroborated the evidence without
any contradiction in their statements ---Material recovered though was not se aled and samples
were not taken on the spot yet the recovery of the material was established ---Accused's
presence in the vehicle carrying the narcotic substance and his apprehension from the spot
was not denied by him ---Burden lay on the accused to establi sh that he was boarding the
vehicle as a hitchhiker and had nothing to do with the material recovered from the vehicle ---
Both the present accused and the co -accused driving the vehicle belonged to the same
locality ---Material on record connected the accuse d with the commission of the offence ---
Trial Court appreciated the evidence correctly ---No interference was warranted by the High
Court ---Appeal was dismissed in circumstances.
Amanullah Kanrani and Miss Saima Jamal for Appellant.
Zahoor Ahmed Shahw ani, Special Prosecutor A.T.A. for the State.
Date of hearing: 17th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The brief facts of the case are that F.I.R. No.18 of
2004 Levies Thana Taftan was registered on 17 -6-2004 at 1630 hours on repor t of Major
Muhammad Umar Farooq, Wing Commander 75 -Wing Kharan Rifles, wherein it was
asserted that on routine patrolling at Waricha Landhi two vehicles and four persons namely
Bashir Ahmed, Zahoor Ahmed, Ghulam Gillani and Shabbir Ahmed were apprehended,
while from vehicle Siapa Registration No.Nil, Engine No.224 -404385, Chassis No. PL140 -
B65357, on checking 19 -Kilograms of suspected heroin was recovered. While the other
vehicle Toyota Hilux bearing Registration No. Chagai -2366, Engine No.37 -0041214, chass is
No.YN57 -061530 a satellite phone was recovered, was guiding the vehicle from which
narcotics are recovered. After registration of case the investigation was made by the Naib
Resaldar Levies Headquarters Taftan namely Rasool Khan (P.W.4). On completion c ase was -
challaned against all the four persons apprehended by the authorities. Before framing of
charge an application submitted by the present appellant, he was declared as juvenile and
direction was issued for submission of separate challan to his exten t through order dated 7 -9-
2004. Separate challan was submitted, whereupon charge was framed against the appellant on
28-9-2004, as he pleaded not guilty of the charge and claimed trial; six witnesses appeared
from prosecution side, while appellant produced only one witness and also recorded his
statement on oath in defence. On completion of trial the court finding him guilty of the
offence, thus convicted the appellant to suffer rigorous imprisonment for life with fine of
Rs.100,000, in default of payment f urther suffer imprisonment for a term of one year. Feeling
aggrieved of the conviction the appellant filed instant appeal, which is pending for
adjudication.
It is contention of the appellant that the trial Court failed to consider the provisions of sect ion
22 read with section 21 of Control of Narcotic Substances Act 1997, which is mandatory in
nature in respect of arrest, seizure and detention. Further, admittedly the recovered heroin and
other articles were handed over to P.W.2, which were taken into p ossession by Investigation
Officer (P.W.4) in Headquarter, which was again handed over to the complainant which
remained in their custody. The legal provisions are violated. Despite assertion of
Investigation Officer he was not competent to investigate, wh ile the investigation was not
conducted properly, this aspect was not considered by the trial court which highly prejudiced
his case. Furthermore, the material which favoured him was not considered, while the
material which favoured the prosecution was acc epted by the trial Court, which is against the
norms of justice. The appellant prayed for setting aside of impugned judgment and he be
acquitted of the charge.
Written arguments were filed by the counsel for the appellant, wherein it is his contention
that it has been admitted by P.W. 1 that the recovered articles and vehicle are in their
possession at headquarter, while all the proceedings were held at Fort by Naib Resaldar, no
proceedings were held at the spot, all the recovery memos were prepared at Fo rt, also
appellant was not present at said occasion. The investigating officer never visited the site of
occurrence, nor prepared the site plan, neither any article was recovered in his presence.
Further, a specific plea was taken by him in his defence, th at he was passenger in the vehicle,
while have no concern with vehicle or articles. Despite admission of investigating officer that
the accused/appellant told him that he boarded in the vehicle from Naukundi to bring the
luggage of his father from Taftan, who had been retired recently and he is a student boarded
on vehicle as passenger, the trial Court failed to appreciate the same.
From perusal of material placed on record certain facts are found to be admitted. First, surely
the appellant was apprehende d from the spot boarding in the vehicle Siapa, which was driven
by co -accused Ghulam Jillani, whereon empty cans/drums were loaded, during checking of
vehicles made by FC personnel. Secondly at spot no proceedings were held, rather on
recovery of alleged n arcotics both the vehicles and all the four persons were brought to Fort
of Kharan Rifles at Taftan, whereafter, written report was sent for registration of F.I.R. to
Levies Thana. While Naib Rasaldar Levies was called at the Fort, who carried out the
proceedings. i.e. memo. of recovered articles were prepared, articles recovered were weighed,
sealed parcels were prepared and custody of accused persons were handed over to him. It is
also an admitted position that after completion of above mentioned proceedi ngs all the
articles were again handed over to the FC Authorities, which remained in their custody till
producing them before the court. The prosecution, is required to establish the recovery of
contraband articles from the vehicle and also has to establis h that the recovered material was
in conscious possession of the appellant. P.W. 1 Major Umar Farooq and P.W.3 Muhammad
Amir are the eye -witnesses of the occasion, they both deposed about the occurrence,
according to them they at first, 'while doing, routi ne checking, stopped vehicle Toyota Hilux
two persons boarded therein, while a satellite phone was recovered from them, whereafter,
second vehicle Siapa reached, which was loaded with empty drums on checking one of them
was found heavy, which was checked o n suspicion, whereupon 19 packets were recovered
from it, both the accused Ghulam Jillani and Ghulam Shabbir, present appellant, were
boarded in the vehicle. Both the vehicles and all the four persons were brought to Fort Taftan
and written report for regi stration of F.I.R. was sent. Both the witnesses corroborated
statement of each other, there is no contradiction in their statements, while P.W.2 Mushtaq
Ahmed is the person to whom the articles and persons apprehended from the site were
handed over by P.W. complainant at Fort, while all the proceedings regarding preparation of
recovery memo. and parcels were held in his presence and he also received back all the
articles to place them in safe custody. P.W.4 Rasool Khan is Naib Resaldar Levies Taftan,
who ac ted as Investigation Officer, prepared the seizure memos, weighed the recovered
suspected material, prepared sealed parcels of samples taken from the material and the
remaining one, also handed over the same to P.W.2 after obtaining the receipt. To this ex tent
there is no contradiction between these two witnesses. P.W.5, Rafique Tareen, who was
posted as Tehsildar Taftan at relevant time produced analysis report Exh.P/5 -A, as per the
same the suspected material is heroin.
As per appellant the investigatio n of the case was made by an unauthorized person, while the
provisions of sections 21 and 22 of Control of Narcotic Substances Act 1997 were not
fulfilled. Though P.W.4 Naib Resaldar Levies admitted during course of cross -examination
that he was not compet ent to conduct investigation, but added to the same that he obtained
sanction from the competent Authority, whereafter, carried out the investigation. He
produced said sanction as Exh.P/4 -B, which reveals that the Judicial Magistrate, Taftan
allowed him to conduct the proceedings in absence of Tehsildar. As per provisions contained
in sections 21 and 22 of Control of Narcotic Substances Act, 1997 and even in section 23 of
the Act an officer not below the rank of Sub -Inspector of Police or equivalent is spec ified to
be empowered to take action under said sections. In present case admittedly the entry and
search was made by an officer to the rank of Major, while recovery was also effected by him.
As far as Naib Resaldar is concerned, he acted in absence of Teh sildar that too with
permission obtained from the concerned Judicial Magistrate, as such there seems to be no
illegality in the same. Even otherwise, any fault or irregularity committed during course of
investigation would not vitiate all the proceedings h eld thereafter, only in case of any
irregularity which is of such a nature not curable or prejudicial to the case of either of the
parties, otherwise' not. In present case the defence only wants to take advantage of the fact
that the officer who conducted the investigation was not competent to carry out the same,
being officer of rank below as mentioned in section -21 of the Act 1997, but no contention of
the sort is raised that the investigating officer held the investigation with mala fide intention
or in such a manner which is against the norms of law and justice, thus of no legal effect. The
Investigating Officer was authorized by the concerned court to proceed with the matter,
therefore, in the circumstances there is no occasion to challenge the authorit y of the officer
concerned. The appellant has also failed to point out that due to the same his case is affected
and prejudice is caused to him.
As far as recovery of narcotic substance, proved to be heroin, is concerned, the witnesses of
the recovery ap peared as P.W.1 and P.W.3, who corroborated evidence of each other, no
contradiction is pointed out in their statements. In support thereof statement of P.W.3 is
recorded. In view of evidence present on record the recovery of suspected material, Heroin,
from the drums loaded on the vehicle, wherein the appellant along with driver co -accused
Ghulam Jillani was boarded, is established. As it is also an established fact that the said
vehicle belonged to co -accused Ghulam Jillani and was also driven by him. Fur ther, the
material recovered was neither sealed at the spot, nor samples were taken from it at the time
of recovery, rather admittedly the articles along with apprehended persons including the
appellant were brought to the headquarters/ Fort by the complai nant. The investigation officer
(P.W.4) conducted the proceedings at fort. Though it is also an irregularity, but the recovery
of the suspected material is established, while no contradiction appeared in statements of the
prosecution witnesses. It has also not been established that the FC personnel were interested
party, thus falsely planted the recovered material against the appellant and co -accused
Ghulam Jillani. As the checking of the vehicles were conducted by the FC personnel, while
recovery was also effected during the same, the Levies personnel/ officers were not
accompanied to them, who were required to be called at the spot, which was not done. The
appellant has not denied his presence in the vehicle and his apprehension from the spot, thus
keeping in view the mentioned admitted facts in absence of any allegation of mala fide, this
irregularity in the proceedings become of less value, thus does not destroy the case of the
prosecution as a whole. The point which remains in hand, which is required to be considered
that though this fact has not been denied by the appellant that he was travelling in the vehicle,
from which the narcotics were recovered, that the appellant was conscious of presence of the
suspected material and also involved in act of tran sportation of the same. As his presence is
not denied by the appellant from the vehicle, which otherwise is not a public conveyance,
now in the circumstances the burden lies upon the appellant to establish that he was travelling
in the vehicle as passenger having no concern with the recovered articles enabling him to
discharge from the offence. In order to prove his contention he recorded his own statement
and also produced one witness. According to the appellant he from house of Muhammad
Akbar in Naukundi, proceeded to Taftan to bring luggage of his father, who was employee of
Public Health, he boarded in vehicle of Ghulam Jillani. The FC personnel stopped and
checked the vehicle wherein empty drums were loaded, after checking they were brought to
the Fort. There were three vehicles, out of which one was released with two persons and they
were told that heroin has been recovered from the vehicle. No heroin was recovered from
their vehicle. While the only defence witness Muhammad Akbar deposed that 6/7 months
back Shabbir (appellant) visited his house and spent night there, on his query he (appellant)
told that he was going to Taftan to bring the stuff. While in the morning he boarded in with
Jillani at road. During course of cross - examination he was unable t o explain that why the
appellant along with co -accused was arrested by the Militia/ FC personnel. He further
admitted that in his. NIC his permanent and present address is mentioned as Killi Faisal
Colony Dalbandin District Chagai. He added to it that he h ad been married in Naukundi.
According to him he is residing in Naukundi from last four years. It is to be noted that the
appellant is also resident of Faisal Colony Dalbandin. The witness did not produce any
document, from which it can be ascertained that he is presently residing at Naukundi. Both
the appellants and his witness are residents of Faisal Colony Dalbandin. It is also to be noted
from the papers present on record that co -accused Ghulam Jillani is also resident of Faisal
Colony Dalbandin. Both t he accused persons and the witness are residents of same area.
Though the investigating officer while recording his statement as P.W.4 in course of cross -
examination admitted that accused Shabbir (appellant) told him that he boarded in the vehicle
from Nau kundi, to bring the luggage of his father, who had been retired from PHE recently,
further he, is student of school, while boarded in vehicle as passenger. The witness further
deposed that as per accused Ghulam Jillani appellant has no concern with the rec overed
material. Though this statement made by the co -accused before Investigating Officer,
exonerating the appellant, but is of less value. As neither disclosure memo. has been
prepared, nor any statement of the co -accused was recorded as confessional sta tement as
required under law. The mere statement made before Investigating Officer about his non -
involvement has to be established by the appellant, apart from the same in view of above the
situation, that his presence in the vehicle at the time of recover y is not denied. The witness
appeared on his behalf also looses his credibility, when he himself unable to establish his
present residential address at Naukundi.
From the whole set of evidence these facts are come on record that the presence of appellant
in vehicle driven by co -accused Ghulam Jillani, from where contraband article, proved to be
heroin, was recovered has been established. Further, the appellant and co -accused are
residents of same area/colony, while boarding in vehicle from Naukundi is not established,
the only defence witness also unable to establish his residence at Naukundi, rather he is also
resident of Faisal Colony Dalbandin, thus the version taken in defence looses its weight. The
trial Court has properly assessed the material presen t on record and come to the right
conclusion. No misappreciation and misreading of evidence is established by the appellant.
As far as plea of false implication in the case while releasing the real culprits is concerned, is
also not established as he (appe llant) is not sure about existence of any enmity between him
and the complainant Major. No mala fide on the part of FC personnel or even against Levies
Personnel are asserted nor established. There is material against the appellant connecting him
with comm ission of the offence without any reasonable doubt.
In view of above discussion the appellant has failed to make out any case in his favour for
interfering in the decision arrived by the trial Court, which is hereby upheld. Instant appeal is
dismissed be ing without merits.
A.R.K. /96/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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