2011 P Cr. L J 669
[Quetta]
Before Ghulam Mustafa Mengal and Mrs. Syeda Tahira Safdar, JJ
JAMSHED KHAN ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 153 of 2009, decided on 23rd December, 2010.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Appreciation of evidence ---Allegations of F. I.R. were fully supported by
witnesses ---No specific allegation of enmity or mala fide was levelled by the accused ---
Testimony of witnesses regarding arrest and recovery remained unshattered ---Accused's
contention that higher officials in whose presence se arch was conducted was not
relevant as prosecution was not required to examine every witness ---Omission to
examine a witness would not discredit the account given by other eye witnesses ---
Omission to examine said witnesses did not affect the merits of the case---Not conducting
the search at the Naka (picket) and taking the vehicle to Police Station was an
irregularity not fatal to the prosecution case ---No material contradiction was found in
the statements of the witnesses ---Appeal was dismissed in circumst ances.
Muhammad Aslam Chishti for Appellant.
Abdullah Kurd for the State.
Date of hearing: 10th August, 2010.
JUIIGMENT
GHULAM MUSTAFA MENGAL, J. ---This appeal under section - 48 of Control of
Narcotic Substances Act, 1997 is directed agains t the judgment dated 16 -5-2009 passed
by the learned judge, Special Court, Control of Narcotic Substances Act, 1997, Quetta,
whereby appellant was convicted under section 9(c), of the Control of Narcotic
Substances Act, 1997 and sentenced to suffer life im prisonment and pay fine of
Rs.1,00,000 or in default whereof to undergo S.I for three years, with benefit of section
382-B, Cr.P.C.
The brief facts of the prosecution case are that on 18-8-2007, Complainant Ghulam
Siddique, ASI, along with Muhammad Hanee f, ASI, Muhammad Zahir, Head Constable
and other Police Officials, while on patrolling duty received spy information to the
effect that a person namely Jamshed Khan, who is indulged in Narcotics business, on
the said day will transport Charas from Chaman t o Quetta, through Corolla Silver
colored Car, affixed Official Number Plate. On receiving said information, complainant
along with Police Officials started checking of Vehicles at Baleli Check Post. At about
10 p.m. the Car in question, having Official num ber Plate bearing No.QAM -1331,
reached the place of Naka Bandy. The Car was signaled to stop whereupon the driver of
the Car accelerated the speed, which was chased by the Police party and apprehended
with the help of second mobile party and F.C. mobile at Khaizai Chowk near Abduliah
Khan Petrol Pump. The Driver of the Car disclosed his name Jamshed Khan son of
Shadi Khan, by caste Sherani, resident of Nawan Killi, Quetta. The Driver and Car was
taken to Police Station for purposes of checking. Search of th e Vehicle was made
through Mohammad Zahir, Head Constable under the supervision of S.P. Saddar, Nasir
Mukhtar Rajpoot and Rao Anwar Ahmad Khan, IP/S.H.O. A thorough search of the Car
led to recovery of 45 packets of Charas from Switch board, 20 packets fro m secret
cavities of driving seat, 30 Packets from secret cavities of front Seat and 60 packets
from secret cavities of back seat. The Charas was weighed and found 155 kilo gram. A
meager quantity of 2 Kg Charas from each rod was separated out of the seize d property
for analysis, and sealed in parcel No.1 and remaining 153 K.g. Charas was sealed in a
separate Parcels Nos.2, 3, 4 and 5. The accused further disclosed that Charas in question
was handed over to him by Haji Abdul Mateen to deliver the same to Ab dul Hafeez
Sheikh at Chenut. The accused was arrested and F.I.R. No.154 of 2007 dated 18 -8-2007,
under section 9 -C, of C.N.S. Act, 1997 was registered against the accused at Police
Station, Air Port, Quetta.
After formal investigation challan was sent to the Court of Judge, Special Court, C.N.S,
Quetta against the appellant, to which he pleaded not guilty and claimed trial.
At the trial, prosecution examined complainant Ghulam Siddique, P.W.1. He deposed
that on 18 -8-2007 he was posted at Police Station , Air Port, Quetta. He further deposed
that on the said date he along with Muhammad Haneef, ASI, Muhammad Zahir, Head
Constable and other Police Officials were on Special Mobile Gusht, during Gasht he
received spy information that a person namely Jamshed i s smuggling Narcotics towards
Quetta. After receiving said information at 9 -30 p.m. he along with his companions
started checking of vehicles at Baleli Check Post. At about 10 -00 p.m. a silver coloured
Car bearing Registration No.QAM -1331 reached the place of checking. At the
pointation of informer Car was signaled to stop, whereupon the Car became slow, but
all of a sudden, the Driver of the Vehicle accelerated the speed, the Car was chased by
Police party in an official Vehicle. He further deposed that th e second Mobile team was
also informed about the Vehicle through wireless set, whose position was at Abdullah
Khan Petrol Pump, Khaizai Chowk, where Militia Mobile was also present. He further
deposed that suspected Car was intercepted by Second Mobile Tea m and F.C. Mobile at
Khaizai Chowk. The driver and Car was taken to Police Station for purposes of
checking. Search of the Car was made through Muhammad Zahir, Head Constable under
the supervision. of Mr. Nasir Rajpoot, S.P. Saddar and S.H.O/I.P Anwarullah Khan. The
search of the Vehicle led to recovery of 45 packets of Charas from secret cavities of dash
board, 20 packets of Charas from secret cavities of underneath of driving seat, 30
packets of Charas from secret cavities of front seat and 60 packets of Chassis recovered
from secret cavities of back seat. On weighing the recovered Charas was found 155
kilograms, out of which 2 kilograms were separated by taking a meager quantity from
each rod for Chemical analysis and sealed it in parcel No.1 while remain ing 153
Kilograms Charas was sealed in separate parcels. He further deposed that the recovered
Charas and Car was taken into custody through recovery memo; Exh.P/1 -A in presence
of witnesses. He produced F.I.R. as Exh.P/1 -B. He also produced Vehicle as Art ; P/1
and Charas along with empty packets as Arts; P/6 to 9. Muhammad Zahir, Head
Constable was examined as P. W.2. He deposed that on 18 -8-2007 he was posted at
Police Station, Air Port. On the same day on spy information received by Siddique,
A.S.I, that Vehicle is coming from Chaman side. After receiving said information he
along with other Police Officials went to Baleli Check Post. At about 9 -30 p.m. a Vehicle
came there and turned towards Bacha Agha Road, which was chased and intercepted at
Khaizai Ch owk near Abdullah Khan Petrol Pump and the Vehicle along with Jamshed
Khan, present in Court was brought to Police Station, where S.H.O., Rao Anwar Ahmad
and A.S.P. Usman Gondal were present. Upon search of the Vehicle 45 Packets of
Charas in rod shape wer e recovered from the secret cavities of switch board, 20 packets
from beneath of driver seat, 30 packets from secret cavities of front seat, 60 packets from
the back of the driver seat. He further deposed that two number plates were recovered from
the trun k/boot of the vehicle. He further deposed that green coloured number plates bearing
No.1331 were affixed on the vehicle. On inquiry accused could not produced the documents
of the Vehicle, accused produced authority letter of P.T.C.L. He further deposed th at on
weighing the Charas it became 155 kgs. out of recovered substance 2 kgs. Charas was
separated for Chemical analysis and remaining Charas was sealed in four parcels and taken
into custody vide recover memo; Exli.P/1 -A. He identified the accused and re covered
Substance present in the Court. Amanullah, S.I appeared as P.W.3. He deposed that on 18 -8-
2007 he was posted as Investigating Officer in Police Station, Airport. After registration
of the case, investigation of the case was entrusted to him. He too k into possession Parcel
Nos.1 to 5, Car bearing Registration No.QAM -1331, authority letter and two number plates
bearing No.ALP -052-Sind. He got .arrested accused in the present case and recorded the
statement of witnesses under section 161, Cr.P.C. On pe rsonal search of the accused he
recovered National Identity Card, Mobile Phone and two Mobile Sims, which were taken into
possession vide recovery memo; Exh.P/3 -A. He produced the said articles before the trial
Court as Articles 16 and 17. He further depos ed that on 21 -8-2007 he sent parcel No. 1 to
F.S.L. for Chemical Examination. He sent a letter to the Excise 'Officer and authority letter
was gent to the P.T.C.L for verification. On 27 -8-2007 he received a letter from Excise
Officer to the effect that re cord of the Vehicle No.QAM -I331 is not available in the Excise
Office record. He also received a letter from P.T.C.L. authorities to the effect that neither the
vehicle in question is their property nor Jamshed Khan is their employee. Thereafter a
separate case was registered against the convict -appellant vide F.I.R. No.157 of 2007 under
sections 420 -465-468 and 471, P.P.C. on 25 -8-2007 he received Chemical Analysis report
Exh.P/3 -B, from F.S.L and thereafter he submitted incomplete Challan of case as Exh.P /3-C.
After the close of prosecution evidence, the appellant was examined under section 342
Cr.P.C. He denied the prosecution allegations and recorded his statement on Oath as
envisage under section 340(2), Cr.P.C. and produced D.W.1, Shoukat Hussain in his
defence. At the conclusion of trial, the learned trial Court after hearing the parties
passed the above said conviction and sentence vide impugned judgment, hence this
appeal.
We have heard the learned counsel for the appellant and the learned counse l representing
the State and also examined the record with their help. Learned counsel for the appellant
contended that in view of material contradictions in statements of P.W. and P.W.2, no
reliance can be placed on the said evidence. He further contended that higher officer namely
Nasir Rajpoot and Usman Gondal have not been produced before the trial Court. He
further contended that the Vehicle was not searched at Khaizai Chowk and brought to 5/6
kilometers at Police Station, Airport, which makes the reco very doubtful; therefore, the
appellant is entitled to the benefit of doubt and may be acquitted of the charge.
As against that the learned State counsel supported the impugned judgment and submitted
that huge quantity of contraband was recovered from th e vehicle in control and possession of
appellant and such heavy quantity of Charas cannot be foisted on the appellant and recovery
of Charas has been proved on the basis of evidence available on record. He further urged
that prosecution is legally not boun d to produce all the witnesses, as such, no illegality or
misreading of evidence has been. pointed out by the learned counsel for appellant,
therefore, the appeal of the convict -appellant is liable to be dismissed.
We have heard the learned counsel for t he parties and have gone through the record with
their valuable assistance.
The facts of the case of prosecution as discussed above are that on prior information that
appellant, who is indulged in narcotics business, will transport huge quantity of Chara s from
Chaman to Quetta in a Corolla silver coloured car. On receiving said information
complainant along with other police officials laid a Naka at Baleli Check Post; at about 10 -00
p.m. a Corolla car having affixed the number plate came at the check post , which was
signaled to stop, the driver of the car accelerated the speed, which was chased and
apprehended at Khaizai Chowk near Abdullah Khan Petrol Pump with the help of second
mobile team and F.C. personnel. The driver of the car disclosed his name as Jamshed Khan
son of Shadi Khan. The vehicle along with the accused was brought to the Police Station,
Airport, where, in the presence of Muhammad Haneef ASI and Muhammad Zahir HC
(P.W.2) from the secret cavities made in switch board, driver seat, front sea t and, back seat
huge quantity of Charas was recovered. Search of vehicle was made through Muhammad
Zahir, Head Constable, having accompanied the complainant at the relevant time, has fully
supported the statement of P. W .1, Ghulam Siddique on material pa rticulars of the
prosecution case with regard to apprehension of the car and arrest of appellant and recovery
of 155 kilogram of Charas from the secret cavities of the car. The contents of the F.I.R. has
been fully supported by P.W.1 Ghulam Siddique and su pported by P.W.2 Muhammad Zahir,
Head Constable, who is Mushir of recovery of Charas. In cross -examination nowhere any
specified allegation of enmity or mala tides has been suggested by the appellant. The
testimony of P.W.1, Ghulam Siddique and P.W.2 Muham mad Zahir regarding ,arrest of
the appellant and. recovery of Charas from secret cavities of the car remained
unshattered and the testimony of both the witnesses are fully in consonance with each
other without any material dent regarding recovery of such h uge quantity of charas from
the car. All the quantity of the two kilogram out of recovered charas was sent to the
Chemical Analysis, which was found to be charas vide Exh.P/3 -B. The prosecution
witnesses were cross -examined at length by the defence, but fa iled to make any gain out
of this exercise. As far as the contention of learned counsel for the appellant that the
higher officials in whose presence, the vehicle was searched, were not produced is not
relevant, because the law in this regard is well settl ed now, that the prosecution is not
required to examine every witness of a crime and that the omission if made would not
discredit the account given by other eye -witnesses. We are of the view that non -
examination of witnesses namely Nasir Rajpoot and Usman Gonda) has not affected
merits of the instant case.
As far as the second contention of learned counsel for the appellant that the vehicle was
not searched at Khaizai chowk and was brought to Police Station is concerned, such
defect in investigation is a n irregularity and not illegality and not fatal to the
prosecution case.
We after scanning the entire evidence available on record, found no material
contradictions in the statements of prosecution witnesses and appellant has not alleged
any ill -will or grudge of the police officials for his false involvement or such huge
quantity of charas can be planted by the prosecution against the appellant, therefore, no
interference is warranted in the well - reasoned judgment of the learned trial Court.
For what has been discussed above, finding no merit/substance in this appeal, the same
is hereby dismissed.
A.R.K./2/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,
let us know.