2012 P Cr. L J 109
[Balochistan]
Before Muhammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
JANGI KHAN and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No. 288 of 2007, decided on 18th July, 2011.
(a) Contro l of Narcotic Substances Act (XXV of 1997) ---
----Ss. 6 & 9(c) ---Qanun -e-Shahadat (10 of 1984), Art. 40 ---Possessing and smuggling of
narcotics ---Appreciation of evidence ---Both accused persons, who respectively were
driver and conductor of the bus where from narcotic was recovered, disclosed information
regarding secret cavities of the bus where the same was concealed ---Such disclosure
followed by the recovery, could be used against accused persons within the meaning of
Art. 40, Qanun -e-Shahadat, 1984 ---Prosecution had successfully proved the recovery of
contraband items from the bus in question ---Accused had not entered into witness box to
record their statements under S. 340(2), Cr.P.C. nor they had produced any defence
witness ---Accused in statements un der S. 342, Cr.P.C. did not dispute said recovery,
except lack of knowledge on their part ---Since accused were driver and conductor of the
bus, they were under legal obligation to have satisfied the conscious of the court by
creating reasonable circumstanc es justifying that both of them were in fact not aware of
concealment of contraband items as they figured only when the bus was ready for
departure ---Accused had failed to attract any circumstances to create a doubt in the case
of the prosecution qua their involvement ---If the conscious of the court was satisfied
regarding involvement of accused, then the technicalities were to be avoided ---Accused
were not the owners of the bus in question, but the liability within the ambit of S.6 of
Control of Narcotic S ubstances Act, 1997, would extend to a person who was in
possession of contraband items ---Case of accused persons fell within the four corners of
S.6 of Control of Narcotic Substances Act, 1997 ---Recovery from the secret cavities of
the bus was effected at the pointation of both accused persons ---No evidence was offered
on the part of accused persons to indicate that they had no nexus with the bus ---Accused
did not even bother to enter in the witness box to confirm or substantiate their version that
they ha d no nexus and concern with the bus ---In view of overwhelming evidence of
prosecution, it was not only difficult, but impossible to believe that accused had no
knowledge of contraband items ---Non-production of bus before the court was not fatal to
the pros ecution case as accused had admitted their presence in the bus as well as recovery
of contraband from the bus ---Case against accused persons, in circumstances, had fully
proved and they were rightly convicted and sentenced, in circumstances.
MLD 2009 Pe sh. 122; MLD 2000 Quetta 618; YLR 2009 Kar. 1724; 2009 SCMR
431; 2002 PCr.LJ 1086 and Appeal No. 226 of 2006 titled as Hafeezullah and another v.
The State ref.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40 ---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c) ---Recovery
of narcotic on information of accused ---Such disclosure of information followed by
recovery could be used against accused persons within the meaning of Art. 40, Qanun -e-
Shahadat 1984.
Shah Muhammad Jatoi for Appellants.
Shoukat Ali Rakhshani, Special Prosecutor, A.N.F. for the State.
Date of hearing: 20th June, 2011.
ORDER
MUHAMMAD NOOR MESKANZAI, J. ---This appeal was filed against the
judgment dated 29th September, 2007 passed by learned Special Judge, C.N.S.
Balo chistan, Quetta (hereinafter referred to as the Special Judge, C.N.S.). The appellants
were convicted and sentenced in the following term: --
"Under section 9(c) of C.N.S. Act, 1997 to suffer R.I for life each with fine of
Rs.200,000 each, or in default th ereof to further undergo six months' S.I. each.
Benefit of section 382 -B, Cr.P.C. was also extended in favour of appellants."
2. Briefly stated, the facts of instant appeal are that on 18th July, 2007, the ANF
party under the supervision of Lt. Colonel Irf an Ahmed, Joint Director, ANF along with
other ANF officials, Quetta, pursuant to spy information regarding smuggling of huge
quantity of narcotics from Quetta to Turbat in a Coach bearing No.PB -0051 installed a
Naka at Lakpass and started surveillance. On the fateful day, the Coach bearing No.PB -
0051 came from Quetta side, which was intercepted on the pointation of informer. The
driver Jangi Khan and Bashir Ahmed Conductor (appellants) were interrogated. During
interrogation Jangi Khan and Bashir Ahmed bec ame confused and disclosed that narcotics
have been concealed in the secret cavities of Bus. It is alleged that during such
interrogation, a third person aged about 57 years made his escape good, however he was
named as Abdul Raheem by informer, who was cl aimed to be identified on seeing. The
driver Jangi Khan son of Abdul Qadir and conductor Bashir Ahmed son of Ghulam
Haider caste Lehri were arrested on the spot. It is alleged that the Bus was brought to
ANF Police Station by ANF personnel due to security reasons and non -availability of
proper arrangements, the search was conducted in ANF Police Station. At the pointation
of Jangi Khan driver five (5) packets were recovered from secret cavities, whereas on the
pointation of Bashir Ahmed 25 packets were reco vered from other secret cavities. From
both the secret cavities total 30 bags wrapped in white cloth were recovered, which were
opened and opium was recovered. The recovered opium was weighed in presence of
witnesses. The total 30 bags, 29 bags contained 1 0 kilograms each and one bag
contained 8 kilograms opium total 298 kilograms opium was recovered. It is alleged
that 4 -4 grams opium from each bag, (total 120 grams) were separated for chemical
analysis. Whereas the remaining recovered opium was sealed in the parcels and parcels
Nos.2 to 31 were prepared. It is alleged that after recovery of opium, the accused Bashir
Ahmed made a disclosure that the said recovered opium belong to accused Haji Abdul
Raheem Jattak and they had to supply the opium to one Obaid -ur-Rehman son of
unknown caste Baloch resident of Mand Ballo. The recovered opium and Bus were taken
into possession through separate Fards.
3. After investigation challan was submitted in the Court of Special Judge, CNS
Balochistan, Quetta. The charge was framed and read over to the appellants, to which
they pleaded not guilty and claimed trial. The prosecution in order to substantiate the
accusation produced the following three P.Ws.: --
P.W.1 Naib Subedar Shabir Hussain Anjum, Complainant of t he case.
P.W.2 Constable Nazeer Ahmed, Mushir of the recovery memos.
P.W.3 Naib Subedar Muhammd Rafique, Investigating Officer.
4. At the end of prosecution evidence, the appellants were examined under section
342 Cr.P.C, wherein they denied the incrimin ating pieces of evidence. However, the
appellants neither opted to record their statements on oath as envisaged under section
340(2), Cr.P.C. nor produced any D.Ws. in their defence.
5. On conclusion of trial, the learned Special Judge, CNS found the appel lants guilty
of the offence and sentenced them as mentioned hereinabove, hence this appeal.
6. The learned counsel for the appellants submitted that the appellants had no
knowledge regarding concealment of contraband items in the Bus nor they were aware of
any secret cavity made by the owner of the Bus. It was maintained that the appellants did
not escape/abscond because they were absolutely ignorant of any contraband items
concealed in the secret cavities of the Bus, which can be treated as a circumstance qua the
innocence of the appellants. The Bus was not produced before the trial Court during trial,
as such the omission on the part of prosecution is a circumstance sufficient in itself to
vitiate the trial. It was next contended that there is no independe nt recovery witness. The
case of prosecution is full of doubts and the material available on record is not sufficient
to warrant conviction. The trial Court has misread the evidence and the facts have been
misconstrued/mis appreciated. Admittedly the appel lants are neither owners of the
bus/coach nor they have got any concern with the recovered opium. The owner of the said
contraband items was provided a chance to make his escape good and appellants have
been wrongly dragged in the case. It was strenuously urged that the meagre quantity taken
for samples does not constitute a valid ground for recording conviction in an offence
under section 9(c) of the C.N.S. Act, 1997. To substantiate his view, the learned counsel
for the appellants placed reliance on the f ollowing judgments and requested for
acceptance of appeal by acquitting the appellants: --
MLD 2009 Peshawar page 122
MLD 2000 Quetta page 618
YLR 2009 Karachi 1724
2009 SCMR 431
PCr.LJ 2002 Karachi page 1086
Unreported judgments of this Court passed in Criminal Appeal No.226 of 2006
(titled as Hafeezullah and another v. The State).
On the other hand, the learned Special Prosecutor vehemently opposed the
contentions so put forth by the learned counsel for the appellants. It was submitted that
the pro secution has proved its case against the appellants by producing independent and
confidence inspiring evidence. It was maintained that both the appellants are admittedly
driver and conductor of the Bus respectively and it is beyond imagination that the dri ver
and conductor were unaware of the secret cavities made in the Bus. It was maintained that
the recovery has been effected on the pointation and instance of the appellants and in this
respect disclosure memo was prepared. The learned Special Prosecutor s ubmitted that the
objection with regard to the samples is of no avail, because the prosecution has collected
the samples from each bag and secondly the recovery and the nature of the contraband
items have not been disputed by the defence. The learned Speci al Prosecutor finally
requested for dismissal of the appeal.
7. We have considered the contentions put forth by the parties learned counsel and
have gone through the record minutely.
8. The case of prosecution as per the record is that a credible informati on was
received by the ANF Officials, Quetta on 18th July, 2007 that through Bus bearing
No.PB -0051, huge quantity of narcotics is being smuggled from Quetta to Turbat. Upon
this information, a raiding party was constituted under the supervision of Lt. Col onel
Irfan Ahmed and at 2 -00 p.m. the raiding party left for Lakpass and started surveillance.
From Quetta side a Bus bearing No. PB -0051 was seen coming and on pointation of
informer, the Bus was intercepted. The driver Jangi Khan and conductor Bashir Ahm ed
were arrested. Upon interrogation, the accused disclosed that in secret cavities of the Bus
contraband items are available. Taking the benefit of passengers Abdul Raheem made his
escape good. At the site on account of security reasons and lack of arrang ement to pull
out the narcotics from the secret cavities made in the Bus, the Bus was brought to ANF
Station. Where on the pointation of Jangi Khan, from the secret cavities of the Bus, five
white bags were recovered, whereas at the pointation of Bashir Ah med 25 other white
bags were recovered, which were opened and checked. In all 298 kilograms opium were
recovered, 29 bags containing 10/10 kilograms each and one bag containing 8 kilograms
were found in secret cavities. From each bag 4 -4 grams was separate d for chemical
analysis and the bags were sealed. Bashir Ahmed disclosed that the narcotics belonged to
accused Abdul Rahim Jattak and they had to supply the said narcotics to one Obaid -ur-
Rehman at Mand Ballo. The recovered articles were taken into posses sion vide Exh.P/1 -A
and the vehicle through Exh.P/1 -B. Personal search of the accused were conducted vide
search memo Exh.P/1 -C and Exh.P/1 -D. The Fards were prepared at ANF Police Station
as Exh.P/1 -C. P.W.1 acknowledged his signature on all the memos and F.I.R. In cross -
examination he stated that all the passengers were brought to ANF Police Station. The
informer also made pointation of the passengers but none of the passengers were made
witness to the recovery. In reply to another question, he expressed his ignorance that the
contraband items were concealed in secret cavities of the Bus by Abdul Rahim. In reply
to another question, the witness expressed his ignorance that the driver and conductor
boarded the Bus when the same was ready for departure in al l respect. It was denied that
the accused did not make disclosure. It was also denied that the accused have got no
concern with the contraband items. It was also denied that the accused did not make
pointation regarding narcotics.
P.W.2 and P.W.3 made alm ost the same statement recorded by P.W.1 in all
respect. Despite lengthy cross -examination, the defence failed to create any dent or
extract anything favourable to appellants. The appellants got recorded their statements
under section 342, Cr.P.C. For read y reference questions Nos.4, 5 and 11 and answers
whereof are reproduced: --
Relevant questions put to appellant Jangi Khan while recording statement under
section 342, Cr.P.C.
Q.No.4. Is it correct that 30 sealed bags Art/1 to Art/30 of opium which were
recovered on your and on the pointation of co -accused produced before the
court as Art/1 to Art/30 and opium was identified by P.W.2 packed in 30
packets as art/31?
Ans: - I do not know.
Q.No.5. Is it correct that Bus No. PB -0051 was taken into possession vi de memo
Exp/1 -B and your personal search memo was prepared by the complainant as
Exp/1 -D?
Ans: - Yes Sir.
Q.No.11. Do you want to say something else?
Ans: - I am innocent. I was not in knowledge of anything/ narcotics concealed in
said Bus and that has been done by the owner of the Bus. I came in bus when
everything was ready on 18 -7-2007.
Relevant questions put to appellant Bashir Ahmed while recording statement under
section 342, Cr.P.C.
Q.No.4. Is it correct that 30 sealed bags Art/1 to Art/30 of opium wh ich were
recovered on your and on the pointation of co -accused produced before the
court as Art/1 to Art/30 and opium was identified by P.W.2 packed in 30
packets as art/31?
Ans: - I do not know.
Q.No.5. Is it correct that Bus No. PB -0051 was taken into pos session vide memo
Exp/1 -B and your personal search memo was prepared by the complainant as
Exp/1 -D?
Ans: - Yes Sir.
Q.No.11. Do you want to say something else?
Ans: - I am innocent. I was not in knowledge of anything/narcotics concealed in
said Bus and that has been done by the owner of the Bus. I came in bus when
everything was ready on 18 -7-2007.
9. Admittedly appellant Jangi Khan was the driver of the Bus, whereas Bashir
Ahmed was conductor. Soon after their arrest, they made a disclosure regarding the sec ret
cavities of the Bus and pursuant to the pointation so made by the appellants, recovery of
contraband items were effected. The disclosure so made followed by the recovery was
something not in the knowledge of the ANF officials, therefore, in our conside red view,
the disclosure followed by the recovery is a circumstance within the meaning of Article
40 of the Qanun -e-Shahadat Order, 1984 and can be used against the defence by the
prosecution. Secondly the recoveries of contraband items stand established n ot only
through the evidence of the prosecution rather the defence has not disputed the recovery
from the Bus. So in such circumstances, the burden otherwise shifts upon the defence to
prove the fact that the appellants were not aware of the contraband ite ms, concealed in the
secret cavities of the Bus.
10. The scrutiny of record further confirms that the prosecution has successfully
proved the recovery of contraband items from the Bus. The appellants have not entered
into witness box to record their statem ents under section 340(2), Cr.P.C. nor they have
produced any defence witness. However they have recorded their statements under
section 342, Cr.P.C, wherein the recovery from the Bus has not been denied except the
lack of knowledge on the part of appellan ts. There is no cavil with the legal proposition
that an accused is not bound to take special plea qua his innocence, even in normal cases
once an accused takes special plea then he is required to prove the same. As far as the
cases under C.N.S. Act are co ncerned, the prosecution is required to discharge the initial
burden, whereas in this case appellants do not dispute the recovery except lack of
knowledge on their part. Since the appellants are respectively driver and conductor of the
Bus, therefore, they were under legal obligation to have satisfied the conscious of the
court by creating reasonable circumstance justifying the inference that both of them were
in fact not aware of concealment of contraband items, as they figure only when the Bus is
ready fo r departure. Here in this case not only the appellants have failed to attract any
such circumstance to create a doubt in the case of the prosecution qua their involvement
rather they made disclosure regarding the concealment of contraband items as discusse d
hereinabove (supra). The business of narcotics is a menace for the entire society and
requires to be curbed through iron hands, therefore, the Courts must have dynamic and
pragmatic approach. If the conscious of the Court is satisfied regarding involveme nt of an
accused then the technicalities to be avoided. By holding the view, we are fortified by the
judgment reported in 2010 SCMR page 27 (titled as Ismaeel v. The State relevant at page
31). Relevant observations therefrom are reproduced hereinbelow: --
"It is now settled proposition of law by afflux of time that in the case of
transportation or possession of narcotics, technicalities of procedural nature or
otherwise should be overlooked in the larger interest of the country, if the case
stands otherwis e proved the approach of the Court should be dynamic and
pragmatic, in approaching true facts of the case and drawing correct and rational
inferences and conclusions while deciding such type of the cases. The Court
should consider the entire material as a whole and if it is convinced that the case is
proved then conviction should be recorded notwithstanding procedural defects as
observed by this Court in Munawar Hussain's case 1993 SCMR 785".
11. Coming to the argument regarding the ownership of Bus, there is no cavil with the
fact that the appellants are not the owners of the Bus nor for that matter this is the case of
prosecution that the appellants were the owners of the Bus. The liability within the ambit
of section 6 of C.N.S. Act, 1997 extends to a per son, who is in possession of contraband
items. Section 6 of the Act, 1997 besides its other ingredients specifically prohibits the
possession, transportation and delivery of narcotics and the case of appellants falls within
the four corners of section 6 of the Act, 1997. Therefore, the argument that the appellants
are not owners of the Bus has no force. As far as the lack of knowledge on the part of the
appellants is concerned, according to the prosecution case, the recovery from the secret
cavities was eff ected at the pointation of both the appellants. Secondly, there is no
evidence on the part of appellants that they were having no nexus with the Bus. Thirdly
the appellants even did not bother to enter in the witness box to confirm or substantiate
their ve rsion that they had no nexus and concern with the Bus except the time of
departure, therefore, in view of overwhelming evidence of prosecution, it is not only
difficult rather impossible to believe that the appellants were having no knowledge of
contraband items. As far as non -preparation of pointation memo, the F.I.R. specifically
finds mention that both the appellants have made disclosure and pursuant to their
pointation, the recoveries were effected. Moreover, there is a disclosure memo prepared
at the i nstance of appellant Bashir Ahmed. Under such circumstances, the argument
raised by the learned counsel for the appellants lacks legal weight/sanctity, as such is
repelled. The non -production of Bus before the Court is not fatal to the prosecution case
as the appellants admitted their presence in the Bus as well as recovery of contrabands
from cavities of the Bus. The learned counsel placed reliance on the unreported judgment
of this Court i.e. Criminal Appeal No.226 of 2006 titled as Hafeezullah and anothe r v.
The State. As far as the dictum laid down in Criminal Appeal No. 226 of 2006 is
concerned, in that case both the appellants had disputed their status as driver and cleaner.
Moreover, in that case P.W.1 could not describe the place where the occurrence took
place. P.W.1 has stated the time of reaching of Police at the venue at 12 -45 a.m. and the
F.I.R. was stated to have been lodged at 3 -00 a.m., whereas according to P.W.2, the
Police party reached at the venue at 10 -30 p.m. and the party reached back at Police
Station at 12 -30 a.m. Seizure memo was prepared at 1 -00 a.m., so in that case, the
non-production of the Truck was not the sole ground for acquittal. Moreover, in that case
the P.Ws. were unable to describe the colour, model and name of owners of the Truck,
whereas in this case, there is no such lacuna. As far as the question of samples and the
citations referred to and relied upon are concerned, the samples have been taken from
each and every packet, therefore, the citation so referred to, are inapplicable in the instant
case.
In view of what has been discussed hereinabove, we find no merit in the instant
appeal, which is dismissed accordingly.
H.B.T./94/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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