2011 P Cr. L J 825
[Quetta]
Before Mr s. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
NADIL JAN and another ---Appellants
Versus
THE STATE ---Respondent
Criminal (CNS) Appeal No. 133 of 2007, decided on 30th December, 2010.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c)---Prohibition of possession, import or export and trafficking of narcotic ---
Appreciation of evidence ---Both prosecution witnesses corroborated statements of each
other and no material contradiction appeared in their statements, despite cross -
exam ination made at length ---Samples taken from whole of the material was sent to the
Chemical Expert from whom positive report had been received ---Accused persons during
course of the trial had never challenged that recovered substance was not narcotic, sendi ng
of entire recovered material for analysis, was not necessary ---Non-appearance of
Investigating Officer, would not be fatal for the case of prosecution as all the relevant
material had been placed before the court through remaining witnesses; and suffici ent
evidence was available on record to prove the charge against accused persons ---Accused
persons tried to prove their false involvement in the case, but they failed to explain their
presence at the site ---Even otherwise the presence and their arrest from the site was not
denied by accused persons ---Accused claimed that at relevant time they were busy in hunting
and when they heard noises of firing they laid down on earth 'in order to save themselves and
that they had been falsely involved in the case ---Accused had failed to establish presence of
any hunting ground in the area; they even failed to show that what they were hunting and
with what weapon, defence plea being without any weight, no reliance could be made on the
same ---No enmity or mala fide was s hown by accused persons on the part of personnel of
Anti-Narcotic Force due to which they were involved in the case ---Trial Court had assessed
the material on record properly and arrived to the conclusion which was in accordance with
law---Accused had fail ed to point out any illegality or irregularity committed by the Trial
Court which required interference by High Court ---Accused having failed to make out any
case in their favour, their appeal against their conviction and sentence, was dismissed, in
circum stances.
2004 PCr.LJ 692. ref.
Syed Ayaz Zahoor for Appellants.
Shoukat Ali Rakhshani, Special Prosecutor ANF for the State.
Date of hearing: 18th August; 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Through this appeal the appellants sou ght setting
aside of judgment dated 21 -5-2007 of Judge Special Court Control of Narcotics Substance
Balochistan, Quetta, whereby they have been convicted for the offence punishable under
section 9(c) of Control of Narcotic Substances Act 1997 and sentenced to suffer life
imprisonment with fine of Rs.l00,000, in default to suffer further imprisonment for a period
of six months. It is their contention that the trial court failed to appreciate the evidence
properly. The medical evidence and nature of injuries are not properly considered in
comparison of the facts as narrated by the prosecution. It is further contended that as per
prosecution they (appellants) made disclosure few days after their arrest, whereby they
disclosed the names of absconding persons, bu t contrary to the same the contents of F.I.R.
reveals names of absconding accused persons. Further, the prosecution case is in total
conflict with the facts. They prayed for their acquittal of the charge by setting aside the
sentence awarded to then.
Learned counsel for the parties are heard and record is perused. As per record the matter was
reported by one Captain Rizwan Khursheed, whereby F.I.R. No.15 of 2006 Police, Station
Anti-Narcotics Force was registered, on 23 -11-2006. As per contents of F.I.R. on secret
information about smuggling of contraband material the raiding party made picket at dry
river bed, on reaching of a vehicle Toyota Land Cruiser coloured Grey from Panjgoor, on
pointation of informer, it was signaled to stop, but the driver accele rated, while two
persons boarded in rear part of the vehicle, started firing with machinegun and Kalashnikov
on the Force, in reply the members of the Force also started firing, whereby both the tyres of
left side were burst and vehicle stopped. It is furt her reported therein that this encounter lasts
for ten minutes, whereafter, the Force surrounded the vehicle, but in the meanwhile two of
the persons, boarded in body of the vehicle taking advantage of mountains, escaped from the
site. But the driver and t he other person, boarded in front cabin of the vehicle, were
apprehended in injured conditions, who disclosed their names as Nadal Jan son of Hayatan
(Driver) and Muhammad Din son of Faqir Muhammad. They further disclosed the names of
absconding persons as Zahid son of Mir Bayan and Zarif son of Mir Bayan. It is further
reported that on search from body of the vehicle white cloth bags, filled with opium, were
recovered. While from rear part of the vehicle one rocket launcher along with two rockets,
one Mach ine Gun, one Kalashnikov along with ammunitions were recovered. As per contents
of F.I.R. due to security risk and keeping in view the condition of injured persons the
recovered articles along with vehicle and apprehended persons were taken to Thana ANF
Turbat. On reaching there the injured persons were sent to hospital for treatment, while on
thorough search 90 white cloth bags were recovered from rear part of the vehicle, each of the
bag contained ten kilo grants opium, thus total weight of recovered mate rial was 900 kilo
grams. Furthermore, from each bag 4 -grams opium was taken as sample for purpose of
chemical analysis. The mentioned arms and ammunitions were also recovered while search
was conducted. After registration of F.I.R. investigation was made a nd on completion case
was challaned before the court of Special Judge, Control of Narcotics Substance Balochistan,
Quetta, whereupon charge was framed on 4 -1-2007 by the trial court, on denial by the
accused persons/ appellants, evidence was called. Four w itnesses appeared from prosecution
side; while in defence the accused facing trial (appellants) recorded their own statements on
oath and produced two witnesses. On completion of trial, after hearing both the learned
counsel, the trial court came to the co nclusion that the prosecution has established its case
against the accused persons/appellants thereby convicted them to suffer rigorous
imprisonment for life with fine of Rs.100,000 each and in default in payment thereof further
to suffer imprisonment for a period of six months.
It is case of the prosecution that both the appellants were arrested from the vehicle from
which opium weighing 900 -kilo grams along with arms and ammunitions were recovered.
Appellant No.1 Nadal Jan is described as driver of the vehicle, while appellant No.2
Muhammad Din is shown as person boarded in the vehicle -On front seat along with the
driver. While to the extent of the persons boarded on rear part of the vehicle it is alleged that
they were succeeded to escape from the site at the time of raid."The initial burden as per
relevant provision of law lies upon the prosecution to establish the recovery of suspected
material from the vehicle driven by appellant No.1, and presence of appellant No.2 in the
vehicle at the time of incid ent. Prosecution witness No.1 (P.W.1) Captain Rizwan Khursheed
being the complainant, while recording his statement before the court,, deposed that on 23 -
11-2006, information to the effect was provided to hint that huge quantity of narcotics was
programmed to be smuggled via Panjgoor, on receiving such information he formed a raiding
party, whereby reached at Kulbar, Tehsil Buleda, thereby set picket at dry rain water drain.
At 10 -30 a.m. they saw a Land Cruiser coloured grey proceeding from Panjgoor loaded with
white cloth bags, on pointation of informer, the vehicle was signalled to stop, but instead of
stopping, the driver accelerated the vehicle. He further deposed that two persons armed with
machinegun and Kalashnikov were boarded on rear part of the ve hicle started firing on Anti
Narcotics Force, which was replied, due to the same two of the tyres of the vehicle were burst
and it stopped at some distance. After ten minutes of cross firing when they surrounded the
vehicle, the two persons sitting in body of the vehicle succeeded to escape, while from
driving seat accused Nadal Jan in injured condition and co -accused Din Muhammad also in
injured condition were apprehended. He further stated that at site the vehicle was searched
and query about absconding p ersons was made from the apprehended persons. He further
deposed that on checking the vehicle 90 (ninety) white coloured cloth bags were recovered;
on search it appears that each bag contains 10 -kilograms opium. As such out of 90 -bags 900 -
kilograms opium w as recovered, whereupon four grains from each bag total 360 -grams was
separated for purpose of analysis. He produced memo of recoveries as Exh.P/1 -A, Exh.P/1 -B,
Exh.P/1 -C and Exh.P/1 -D.
P.W.2 Ghulam Murtaza Constable an eye -witness of the occasion and al so attesting witness
of memo of recoveries also narrated the occurrence of incident with same facts and
averments. He produced recovered narcotics as Article P/1 to Article P/120. He also
recognized his signatures on memo of recovery Exh. P/1 -A and Exit. P /1-B. Prosecution
witness No. 3 Ali Gul ASI is witness of disclosure made by accused Nadal Jan on 2 -12-2006.
As per his statement accused Nadal Jan disclosed that the vehicle from which 'recovery was
made is owned by one Zahid and Zarif; who were in armed position while boarding in the
vehicle and made firing on personnel of Anti -Narcotics Force, thereafter, succeeded to escape
from the site. Further disclosed that they (accused persons) were required to hand over the
recovered narcotics substance to one Mu llah Liaquat, Haleem and Juma. He produced metro
of disclosure as Exh.P/3 -A. P.W.4 Captain Shahzad Yousaf Malik, appeared in place of
Inspector Shahzad Ali Kawish, the Investigation Officer, who has already been discharged
from his services. This witness p roduced site map as Exh.P/4 -A, memo of disclosure as
Exh.P/3 -A, analysis report as Exh.P/4 -B and challan as Exh.P/4 -C.
In their defence the accused persons/appellants got recorded their statements on oath. As per
appellant Nadal Jan, on the date of incid ent he along with co -accused Muhammad Din and
one Noor Muhammad were busy in hunting. Meanwhile they heard noises of tiring. On the
same they laid down on earth in order to save themselves, meanwhile a bullet hit him. People
gathered at the site, he was ta ken to hospital by ANF. He deposed that he has been involved
in present case falsely, he has no concern with the vehicle or recovered narcotics material.
Accused/appellant No. 2 Muhammad Din, while recording his statement before court,
deposed that on 23 -11-2006 lie along with Nadal Jan and Noor Muhammad were present in
hunting ground in area of Kulbar and busy in hunting. At 10th -11th hours of the day firing
started, whereby he was injured. Meanwhile personnel of ANF reached there and took him to
hospital. He further contended that he has been falsely involved in commission of the
offence.
The accused persons/appellants produced two witnesses in their defence. D.W.1 Muhammad
Ayub deposed that on 23 -1.1-2006 he was present in hunting ground at Kulbar, the accused
persons were also present there, in between 10th -11th hours of the day he heard noise of
firing, he hide himself behind the trees. After firing he also heard screaming and saw the
accused persons in injured condition. Beside Noor Jehan several othe r persons also gathered
at the' site. Meanwhile personnel of ANF reached at the site and on his protest they admitted
that the accused has been hit through mistake, they took accused persons to hospital. On next
day he burnt that accused had been arrested in case of narcotics substance. D.W.2 Noor
Muhammad alias Noor Jan while recording his statement deposed that he along with accused
persons were present in hunting ground situated at Kulbar, firing started in between tenth and
eleventh hours of the day, af ter firing he saw the appellants/accused persons were lying in
injured condition. On reaching of ANF personnel he (witness) made protest while ANF staff
recognized their fault and took the accused persons to the hospital.
On basis of this evidence the tr ial court while finding the accused/ appellants guilty of the
charge thus awarded them punishment to suffer life imprisonment with fine of Rs.100,000
each and in default to suffer further imprisonment for six months. While arguing the case it is
contended by learned counsel for the appellants that the prosecution failed to establish the
recovery of entire material as charas as analysis report is only to the extent of a small quantity
of the recovered material. Further material separated for analysis was not sealed in separate
parcels. Further contended that there is no evidence establishing the fact that the appellants
were in conscious possession of contraband article, even their exclusive possession is not
proved. Learned counsel further argued that there was no recovery of empties from the place
of occurrence, nor evidence was produced to establish the fact that the incident occurred in
the manner as narrated by the prosecution. It is further his contention that this fact was
required to be proved that the appellants, who were arrested in injured condition were in
fact associates of co -accused persons and involved in transportation of recovered
material/narcotics drug i.e. opium. Furthermore, the Investigating Officer has not been
produced, the articles can not be proved by secondary evidence. Learned counsel contended
that the case of prosecution is highly doubtful, therefore, the benefit of it must be extended in
favour of the appellants. Further, the trial court failed to consider these aspects of the case . In
reply the learned State counsel asserted that the case has been established against the
appellants free from all reasonable doubts. It is his arguments that the disclosure made by
accused/appellant No.1 Nadal Jan is very much admissible in evidence, a s per Article -40 of
Qanun -e-Shahadat Order, 1984 as there is discovery of new facts. The cause of delay in
recording of disclosure is that appellant No. 1 being admitted in hospital for treatment and on
discharge he made the disclosure. As far as non -recov ery of empties and non -production of
Investigation Officer is concerned, learned counsel contended that the empties were taken
into custody from the site, while separate case was registered to said extent and through order
dated 10 -11-2009 the appellants h ave also been convicted for the offence punishable under
section 13(e) of Pakistan Arms Ordinance 1965. As far as non -appearance of Investigation
Officer is concerned, learned counsel contended that as all the proceedings were already
completed at the site while nothing remained to investigate, therefore, non -appearance of
Investigation Officer is not fatal to the case of prosecution. Further contended that whole
recovered material is not required to be sent for chemical analysis, rather sample taken for
said purpose is enough to prove the whole material as narcotics substance. He relied on case
law reported in 2003 SCMR page -54 and 2004 PCr.LJ page -692. The learned State counsel
relied on section -29 of Control of Narcotic Substances Act 1997, he stressed th at the burden
was on the accused persons to establish that they are not involved in commission of the act.
As per prosecution story the appellants were apprehended from the vehicle from which the
narcotics substance was recovered after an encounter in be tween the Anti -Narcotics Force
and two of the absconding accused persons. In present case it is an admitted position that the
appellants were apprehended by the personnel of Anti -Narcotics Force on 23 -11-2006 from
the site of incident, that too in injured condition. As per prosecution case the appellants were
boarded in the vehicle from which narcotics substance was recovered, while the vehicle was
allegedly driven by appellant No.1 (Nadal Jan) and appellant No.2 Muhammad Din was
sitting beside the driver. Contrary to the same in defence the accused/appellants raised plea
that they were busy in hunting in hunting ground situated in area of Kulbar, in between ten
and eleven hours of the day suddenly firing started, they both were injured due to said firing.
In order to establish this contention the accused persons/appellants produced two witnesses
namely Muhammad Ayub D.W.1 and Noor Muhammad D.W.2. Both of them asserted their
presence in the area at the time of incident, when the firing started and on coming t o its end
they saw accused persons/appellants, in injured condition. Further asserted that personnel of
Anti-Narcotics Force reached at spot sod on their protest, the Force while admitting their
fault, took the accused persons/appellants for giving them tr eatment, but on next day they, the
witnesses, came to know that appellants are involved in case of Narcotics. Both these
witnesses are chance witnesses, as they are neither resident of the area, nor their presence
thereon is in usual course of life, as suc h their presence is required to be explained properly.
Though D.W.1 Muhammad Ayub asserted his presence at the site at relevant time, but he was
unable to disclose the purpose of his presence there, as he himself disclosed his place of
residence at Balicha . He further described the distance between Balicha and Kulbar as of two
hours, as such there was less possibility of his presence at the site. As far as D.W.2 Noor
Muhammad is concerned, he deposed that he accompanied the accused persons/appellants at
hunting ground in Kulbar, when the firing started. But he did not confirm the presence of
D.W.1 at the site at time of incident. Though the appellants and D.W.1 deposed about
presence of other persons at the site, who gathered soon after incident, but there i s no
explanation that from where these persons came from soon alter occurrence of incident, as
according to contents of map, prepared by the investigation officer after inspection of the site,
does not disclose presence of residential accommodation or plac e of business in the area
nearby. The witnesses have to explain their presence at the time of incident, but these facts
make the defence version less reliable.
Though as per section 29 of Control of Narcotics Substances Act 1997, there is presumption,
about commission of offence, by the accused persons unless and until contrary is proved. But
before arriving to this stage the initial burden lies upon the prosecution to prove its case apart
from the presumption provided therein, The alleged recovery is req uired to be established
against the accused persons at the first instance, whereafter, the burden shifted to the accused
person, who has to establish his innocence and false registration of case against him.
Prosecution witness No.1 Captain Rizwan and P.W. 2 Ghulam Murtaza are the eye -witnesses
of the occasion. They both described the occurrence and recovery of narcotics substance.
Both of the witnesses corroborated statements of each other, as no material contradiction
appears in their statements despite cr oss-examination made at length. As per prosecution case
the recovery of suspected material was effected from the vehicle driven by the accused
persons/appellants. ft is evident from the material present on record that as soon as two of the
accused persons/ appellants were apprehended while remaining two allegedly absconded after
encounter, the recovered material along with vehicle and injured persons were taken to
Thana, without conducting any proceedings at the site, while all the proceedings were held
and formalities were made in the Thana. Thereby the recovered narcotics substance i.e.
opium was seized, samples were taken, parcels were prepared and vehicle was taken into
possession, and seizure memos were prepared. The articles so seized were produced bef ore
the court during course of evidence and got them exhibited. This fact is also apparent from
record that all these proceedings were made in Thana in absence of accused persons/
appellants. The probable reason seemed to be that the accused persons were i n injured
condition, thus sent to hospital for treatment, can be treated as reasonable. Thus in, the
circumstances the absence of accused persons will not be held fatal for the prosecution case,
as this fact has come on record through evidence, though deni ed from defence side, that
recovery of narcotics substance was not effected from any secret cavity of the vehicle, for
which some pointation was required, rather the material was recovered from the white clothes
bags loaded on rear part/body of the vehicle . These bags were opened and material was
seized in absence of accused persons/appellants. Despite this fact the circumstances of the
case and other material produced in evidence is required to be seen carefully. The prosecution
in order to prove its case produce the officer within the meaning of section 21 of Act of 1997
as P.W.1 Captain Rizwan, the complainant and got recorded his statement, while one of the
witnesses of seizure memo appeared as P.W.2. Both these witnesses fully corroborated the
case of t he prosecution.
In addition the samples taken from whole of the material was sent to the Chemical Expert
from whom positive report has been received, which is present on record as Exh.P/4 -B. As
far as arguments of the learned counsel for the appellants t o the effect that entire recovered
material has not been sent for analysis, thus the report cannot be relied upon, is concerned, it
is of less worth, as during course of trial the accused persons never challenged that the
recovered substance being not narc otics, thus in the circumstances sending of entire
recovered material for analysis is not necessary'. As far as legal position and evidentiary
value of disclosure made by one of the accused person is concerned, it can be admissible
and proved, but to the e xtent as provided under Article -40 of Qanoon -e-Shahadat Order
1984, which states as under: --
Article -40:---How much of information received from accused may be proved . When
any fact is deposed to as discovered in consequence of information received from a
person accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved."
Thus keeping in view this provision of law in present case appellant No.1 made disclosure
about presence of co -accused persons namely Zahid and Zarif, who are being allegedly to
be owners of vehicle and also made firing on team of Anti -Narcotics Force thereby
succeeded to escape, further disclosed that the recovered opium was to be delivered to
Mullah Liaquat, Haleem and Haji Juma. Though such sort of disclosure can be admissible in
evidence and can be relied upon, but it is the prosecution who has to establish that the
information provided by the a ccused person led to discovery of some fact, which was
previously not in their knowledge and the disclosed facts relates to the commission of the
offence. In present case though one witness of memo of -disclosure appeared and got
recorded his statement as P . W.3, but no other evidence was led by the prosecution in order
to prove the fact disclosed by the accused person. As neither the owners of the vehicle were
arrested nor the persons to whom delivery was intended to be made traced out. Thus in the
circumst ances less reliance can be made on such sort of disclosure. As far as non -
appearance of Investigating Officer is concerned, it will not be fatal for the case of
prosecution, as all the relevant material has been placed before the court through remaining
witnesses and there is sufficient evidence available on record to prove the charge against the
accused persons.
In view of above discussion the prosecution has discharged the burden initially lay upon it
whereafter, the burden shifted to the accused person s/appellants to prove the otherwise.
Though the appellants tried to prove their false involvement in the case, but they failed to
explain their presence at the site. Even otherwise the presence and their arrest from the site is
not denied by the appellants . The press clipping produced by appellant No.1 does not support
their contention rather establish the case of the prosecution. Moreover, the appellants have
failed to establish presence of any hunting ground in the area. They even failed to show that
what they were hunting and with what weapon. Their defence plea is without any weight,
thus no reliance can be made on it. The witnesses who alleged their presence at the site at
time of incident also failed to justify their presence at the site. The appellant s have
completely failed to establish their contention. No enmity or mala fide is shown on the
part of personnel of Anti -Narcotics Force, due to which they were involved in present case.
The trial court has assessed the material on record properly and arri ved to the conclusion
which is in accordance with law. The appellants have failed to point out any illegality or
irregularity committed by the trial Court, which requires interference by this court.
In view of above discussion the appellants have failed to make out any case in their favour.
The appeal is hereby dismissed being without merits. The judgment of trial Court dated 21 -5-
2007 is hereby upheld.
H.B.T./10/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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