2012 P Cr. L J 1477
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
SAMIULLAH and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Appeal No.227 and Criminal Acquittal Appeal No.231 of 2010, decided on 30th May,
2012.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Trafficking of narcotics ---Appreciation of evidence ---Accused was found in
possession of narcotics while travelling in truck---Pros ecution had substantiated accusation by
producing cogent and concrete evidence ---No glaring contradiction could be pointed out in the
statements of witnesses ---Minor contradictions which crept in with the passage of time, could
easily be ignored---Despite exhaustive and searching cross -examination, nothing advantageous
could be elicited rendering any help to the case of accused ---All the prosecution witnesses were
natural and impartial, having no enmity or rancour against accused; and their evidence could not
be discarded only for the reason that they were official witnesses ---Question of substitution or
false implication of the accused would not arise, who was found in possession of the narcotics ---
Trial Court had discussed the evidence and had given valid reasons for its conclusion---
Impugned Judgment did not suffer from any illegality or material irregularity---No delay took
place in lodging the F.I.R.---Provisions of S.103, Cr.P.C. had no application to the narcotics
cases as per provisions contained unde r S.25 of Control of Narcotic Substances Act, 1997---
Immediately after the apprehension, the charas in question was recovered from the secret cavities of the truck, being driven by accused---Certain quantity of charas from each packet was separated, sealed into a separate parcel and dispatched to the Federal Government Analyst for
opinion---Opinion of the Analyst was in positive ---Occurrence had partly been admitted by
accused and he raised the plea of substitution and false implication---Said plea, in the peculiar facts and circumstances of the case, was nothing, but merely an attempt to hide his own guilt ---
Defence version being false, fabricated and an afterthought, had rightly been rejected by the Trial Court ---Evidence on record had rightly been appreci ated by the Trial Court; and the impugned
judgment being well -reasoned and unexceptionable, did not call for any interference ---
Appeal of accused was dismissed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9 (c)---Criminal Procedure Code (V of 1898), S.417(2- A)---Trafficking of narcotics ---
Appeal against acquittal ---Appreciation of evidence ---Accused was found sitting along with
main accused on front seat at the time when the truck in question was intercepted ---Prosecution
did not produce any concrete evidence, except the alleged joint disclosure to show that he was in
joint possession or control of the truck in question or he had any concern or deal with the contraband material in any manner ---Charas was found concealed in the secret cavities of the
truck in question, meaning thereby that narcotics were hidden from all persons ---No evidence
was available to indicate that accused knew that charas was concealed in the secret cavities, or he
had exclusive knowledg e of the said cavities ---Prosecution had simply proved presence of
accused in the truck at the time, when the same was intercepted ---Mere presence of accused in
the truck would not be sufficient to involve him in the case, unless conspiracy or abetment of the
offence was shown and proved---Case of accused, in circumstances, was quite distinguishable from the case of main accused ---Accused was father of main accused, but each and every
individual was responsible for his own act ---To err in acquittal was better to err in conviction---
Mistake of Qazi (Judge) in releasing a criminal was better than his mistake in punishing an innocent ---Appeal against acquittal, being meritless, was dismissed.
Holy Prophet Muhammad (P.B.U.H.) rel.
Muhammad Qahir Shah and Munir Ahmed Langov for Appellants (in Criminal Appeal No.227
of 2010).
Shaukat Ali Rakhshani Special Prosecutor ANF for Appellants (in Criminal Acquittal Appeal No.231 of 2010).
Shaukat Ali Rakhshani, Special Prosecutor ANF for Appellants.
Muhammad Qahir Shah and Munir Ahmed Langov for Respondents.
Date of hearing: 9th May, 2012. JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Criminal Appeal No.227 of 2010 is directed
against the judgment dated 18th August, 2010, passed by the Special Judge CNS, Balochistan,
Quetta (the "trial Court"), whereby appellant Samiullah son of Haji Nasrullah was found guilty for committing an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the "CNS Act") and sentenced to suffer life impr isonment and to pay a fine of Rs.100,000
(rupees one hundred thousand only), or in default whereof to further undergo SI for one (1) year, with the benefit of section 382- B of the Cr.P.C. Through the aforesaid judgment, the trial
Court acquitted co -accused Haji Nasrullah of the charge, against which Criminal Acquittal
Appeal No.231 of 2010 has been filed by the State through Regional Director/ Force Commander, Anti -Narcotics Force (ANF), Balochistan, Quetta.
2. Complainant Tanveer -ul-Hanif, Assi stant Director ANF, Quetta (P.W.1) in his murasila
(Exh.P/1- A), alleged that on 2nd February, 2009, the high- ups received secret information to the
effect that Haji Nasrullah and his son Samiullah, through a truck bearing Registration No.TKA -
304, would smuggle huge quantity of narcotics from Gulistan District Killa Abdullah to
Shikarpur via Quetta. On receiving said information, a raiding party, consisting of the
complainant, and other ANF staff, was constituted, who at about 5- 30 p.m., started surveillance
at Quetta -Sibi road at Mach cross. At about 6- 30 p.m., the aforesaid truck was found coming
from Quetta side, which was signalled to stop on the pointation of informer, but the driver tried to accelerate the truck, however, the same was stopped. The compl ainant further alleged that the
person, who was sitting on driver's seat, disclosed his name as Samiullah, whereas the person,
sitting along with him on from seat, as Haji Nasrullah. During course of interrogation, they
disclosed that the narcotics were being concealed in the secret cavities of the floor of the truck and on their pointation, the floor was checked, wherefrom 490 packets of baked charas, weighing one kilogram each packet, total weighing 490 kilograms, were recovered, out of which, 490 grams of charas from each packet was separated for chemical test and sealed in parcel No.1, while the remaining charas was also sealed in parcels Nos.2 to 17. Consequently, the aforesaid case was registered.
3. On the stated allegation, a formal charg e for possession of narcotics against the appellant
and co -accused (since acquitted) was framed, to which they did not plead guilty and claimed
trial. The prosecution, in order to prove its case, produced three witnesses, viz. P.W.1 Tanveer -
ul-Hanif, Assis tant Director ANF (complainant), P.W.2 Sobedar Manzoor Ali, (recovery
witness), and P.W.3 Adeel Riaz, SI (Investigating Officer). After recording of prosecution evidence, the appellant and co -accused Haji Nasrullah were examined under section 342, of
the Cr.P.C., wherein they repudiated the prosecution's allegation and claimed to have been falsely charged. The appellant did not record his statement on oath, whereas co- accused Haji
Nasrullah recorded his statement on oath. They produced two witnesses; viz. D.W.1 Ghulam
Sarwar alias Tore Jan and D.W.2 Sardar Faiz Ahmed Durrani in defence. Upon consideration of the evidence produced by the parties in support of their respective contentions, the trial Court
held that the prosecution has succeeded in provi ng its case against appellant Samiullah beyond
reasonable doubt and, while having held so, convicted and sentenced him and acquitted co -
accused Haji Nasrullah by extending benefit of doubt, as stated above, hence, these appeals.
4. We have heard learned counsel for the parties and also gone through the impugned
judgment. 5. Learned counsel for appellant Samiullah, in Criminal Appeal No.227 of 2010, stated that
evidence of the witnesses is contradictory to each other; that there is delay in lodging of the F.I.R.; that on the basis of same evidence, co -accused Haji Nasrullah was acquitted of the charge,
while the appellant was convicted without any justification; that the trial Court has failed to appreciate the defence version vis -a-vis prosecution case, therefore, the case of prosecution is
doubtful. 6. On the other hand, learned Special Prosecutor, ANF, representing the State in Criminal
Acquittal Appeal No.231 of 2010, opposed the criminal appeal and submitted that the case against appellant Samiullah and acquitted accused/respondent has been proved beyond any
reasonable doubt. Both the appellant and respondent Haji Nasrullah were boarded in one vehicle and that huge quantity of narcotics was recovered from their joint possession, concealed in secret cavities of the truck in question and, obviously, such a huge quantity of narcotics cannot be
planted by the ANF from their own resources. The prosecution evidence is consistent on material
aspects of the case and it has brought home the guilt of both the a ppellant and respondent Haji
Nasrullah.
7. We have carefully examined the contentions, as agitated on behalf of the parties and
scanned the entire evidence, which has come on record, by keeping the defence version in
juxtaposition and perused the impugne d judgment. A careful scrutiny and in- depth evaluation of
the entire evidence would reveal that prosecution has substantiated the accusation by producing
cogent and concrete evidence. In this connection, the eye account has been furnished by Tanveer -ul-Hanif (P.W.1) and Sobedar Manzoor Ali (P.W.2). A conscious analysis of the
depositions of the above named P.Ws. would reveal that appellant Samiullah was found in possession of recovered narcotics, while travelling in truck bearing Registration No.TKA -304.
No glaring contradiction could be pointed out in their statements and insofar as the minor
contradictions are concerned, the same do creep in with the passage of time and can be ignored safely. It is worth -mentioning that in spite of exhaustive and searching cross -examination,
nothing advantageous could be elicited rendering any help to the case of appellant Samiullah. We are of the firm opinion that all the prosecution witnesses were natural and impartial, having no enmity or rancour against the appellant a nd their evidence cannot be discarded only for the
reason that they are official witnesses. In view of the overwhelming evidence, as mentioned hereinabove, the question of substitution or false implication of the appellant does not arise, who was found in possession of the narcotics. 8. The trial Court has discussed the evidence and has given valid reasons for its conclusion.
The statements of Tanveer -ul-Hanif and Manzoor Ali have rightly been considered and relied
upon by the trial Court. The judgment im pugned herein does not suffer from any illegality or
material irregularity. We are not persuaded to agree with the prime contention of learned counsel
for the appellant that the F.I.R. has been lodged after unexplained delay of four hours and, therefore, t he prosecution case is doubtful. It is not denied that undue, unreasonable and
unexplained delay in filing F.I.R. leads to suspicion and reflects on the truth of the prosecution case and earlier information of crime is required to be supplied in order to a void criticism of the
report as being manipulated, but in the present case, we find that there is no delay in lodging of F.I.R., as it is abundant clear from bare reading of F.I.R. that the place of raid is situated at a distance of about 80 kilometers from the ANF Police Station, Quetta.
9. Reverting to the next contention regarding non -association of private witnesses, the
provisions of section 103 of the Cr.P.C. have no application to the narcotics cases under the CNS Act as per provisions contained under section 25 of the said Act. The rec ord is also indicative of
the fact that immediately after the apprehension, the charas in question was recovered from the secret cavities of the truck, being driven by appellant Samiullah, certain quantity of charas from each packet was separated, sealed i nto a separate parcel and dispatched to the Federal
Government Analyst, Balochistan for opinion. The opinion of the Analyst (Exh.P/3- E) is in
positive. 10. We have also kept the defence version in juxtaposition. The occurrence has partly been
admitted by appellant Samiullah and he raised the plea of substitution and false implication. This
plea, in the peculiar facts and circumstances of this case, is nothing, but a cock and bull story and is merely an attempt to hide his own guilt and cannot be accredite d with truth for the following
reasons: --
(i) Firstly, the appellant did not courage to make statement on oath;
(ii) Secondly, he did not lead any reliable and cogent defence to prove it;
(iii) Thirdly, it is repellant to common sense and it cannot be believed that officials would
plant such a huge quantity of narcotics on the appellant from their own resources.
11. We are of the opinion that the defence version, being false, fabricated and an
afterthought, has rightly been rejected by the trial Court. The evidence, which has come on record, has rightly been appreciated by the trial Court and the impugned judgment, being well reasoned and unexceptionable, does not call for any interference. Accordingly, Criminal Appeal No.227 of 2010, being devoid of any merit is dismissed.
12. So far as Criminal Acquittal Appeal No.231 of 2010 is concerned, it is the case of
prosecution that respondent Haji Nasrullah was found sitting along with appellant Samiullah on front seat at the time, when the truck in quest ion was intercepted. The prosecution did not
produce any concrete evidence, except the alleged inadmissible joint disclosure to show that he was in joint possession or control of the truck in question or he had any concern or dealt with the contraband material in any manner. On the contrary, the charas was found concealed in the secret cavities of the truck in question, meaning thereby that the narcotics were hidden from all persons. There is no evidence to indicate that respondent Haji Nasrullah knew that charas was
concealed in the secret cavities or he had exclusive knowledge of the said cavities, so as to attract the provisions of Article 122 of the Qanun- e-Shahadat Order, 1984. The prosecution has simply
proved his presence in the truck at the time when the same was intercepted, therefore, mere
presence of respondent Haji Nasrullah in the truck would not be sufficient to involve him in the present case, unless conspiracy or abetment of the offence is shown and proved. Thus, the case of respondent Haji Na srullah is quite distinguishable from the case of appellant Samitillah. We
are conscious of the fact that respondent Haji Nasrullah is father of appellant Samiullah, but it is a settled principle of law that each and every individual is responsible for his own act and the
Holy Prophet Muhammad (P.B.U.H) preached this view in his last address that father is not responsible for the acts of his son or daughter, whereas the son and daughter are not responsible for the acts of his/her father. It is a golden principle of law that to err in acquittal is better than to err in conviction. It is also saying of the Holy Prophet Muhammad (P.B.U.H) that mistake of Qazzi (Judge) in releasing a criminal is better than his mistake in punishing an innocent.
Thus, Criminal Acquittal Appeal No.231 of 2010, being meritless, is also dismissed. H.B.T./46/Q Appeals 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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