2012 P Cr. L J 1717
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Abdul Qadir Mengal, JJ
ABDUL KHALIQ ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.156 of 2010, decided on 28th June, 2012.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession and smuggling of narcotics ---Appreciation of evidence ---Knowledge
and conscious possession of narcotic ---Scope ---Huge quantity of narcotic lying on the rear
seat of vehicle ---Whether passenger of said vehicle would have knowledge and conscious
possession of the narcotic ---Scope ---Failure to show any ill -will or motive for false
implication ---Effect ---Accused was allegedly part of a caravan which was trying to smuggle
narcotics across the border via Pakistan ---Accused was apprehended from a vehicle, which
was part of the caravan and after search of said vehicle 1280 kilograms of opium was found
lying in the rear seat of the vehicle ---Trial Court convicted the accused under S.9(c) of the
Control of Narcotic Substances Act, 1997 ---Contentions of the accused were that he got a lift
on the vehicle in question and subsequently was not allowed to get off the vehicle, and that
the co-accused who was the driver of the vehicle, had control over the same, and the accused
did not have knowledge or conscious possession of the narcotic ---Validity ---Accused was
travelling in a vehicle, in which huge quantity of narcotic was lying on the re ar seat, which
gave the impression that he was involved along with the co -accused driver and had
knowledge and conscious possession of the narcotic ---Accused had failed to show that he had
no conscious possession over the narcotic ---Prosecution had success fully established the
recovery of narcotic from the vehicle ---Evidence further showed that accused was member of
a gang, involved in smuggling narcotics across the border via Pakistan ---Evidence of
prosecution witnesses qua recovery of narcotic was corrobo rative and convincing and there
was no contradiction in their statements ---Accused had not shown that Anti -Narcotics Force
officials had any enmity or ill will towards him to falsely involve him in the case ---Appeal
was dismissed, in circumstances.
Muha mmad Yousaf for Appellant.
Shaukat Ali Rakhshani, Special Prosecutor ANF for the State.
Date of hearing: 11th June, 2012.
JUDGMENT
ABDUL QADIR MENGAL, J. ---The appellant Abdul Khaliq son of Abdullah Jan, caste
Mengal, resident of Killi Chahi Shah, Dalbandin, presently confined at District Jail, Quetta
has challenged the judgment dated 10th June, 2010 passed by the learned Special Judge,
CNS, Quetta whereby the appellant was convicted and sentenced under section 9(c) of the
Control of Narcotic Substa nces Act, 1997 to suffer life imprisonment with fine of Rs.100,000
and in default of fine the appellant was directed to suffer simple imprisonment for one year.
The benefit of section 382 -B, Cr.P.C. also has been extended in favour of the appellant.
2. Brief facts leading to file the present criminal appeal are that Commander ANF,
Dalbandin Area received spy information that a gang of smugglers consisting upon Haji
Hameed, Haji Rasheed, Haji Samad, Haji Shah Nazar and others would smuggle narcotics
from A fghanistan to Iran, as such, a raiding party was organized, which proceeded at 12 -00
p.m. towards Taftan and after covering 21 Kilometers ambushed in the mountainous area. It
was 6 -00 p.m. when eight Land Cruisers found coming from Afghanistan side, on reaching of
the vehicles the same were signaled to stop, however, they started firing towards ANF party,
due to their firing Subedar Shabbir Anjum and Kamran Bashir sustained injuries, the wind
screen of the vehicle was also broken. The ANF officials in re taliation started firing and
succeeded to get stop one of the Land Cruisers, from which two persons were arrested. The
person, who was driving the vehicle told his name Muhammad Yousaf, while the other who
was sitting beside him on front seat told his name Abdul Khaliq. The both arrested accused
confirmed that the Karwan was consisting upon Haji Abdul Hameed, Haji Rasheed and his
other colleagues. On checking of the vehicle 26 (twenty six) plastic bags containing 128 cloth
bags recovered, which on checking was found opium. On weighing the opium it was 1280
kilograms. Sample of 512 grams separated from each of the cloth bag and then through
Murasila F.I.R. Exh.P/3 -F was lodged. After registration of the case and on completion of the
investigation the matter w as sent to the court of Special Judge, CNS, Quetta for trial.
3. On 12th February, 2009 charge was read over to the accused, to which the accused
pleaded not guilty and claimed trial, whereas, it is alleged that during confinement the co -
accused escaped from the Jail.
4. The learned Special Judge, CNS, Quetta on conclusion of the trial passed the
impugned judgment, against which the instant appeal is filed.
5. We have heard Mr. Muhammad Yousaf Mengal, Advocate for the appellant while Mr.
Shauk at Ali Rakhshani, Special Prosecutor, ANF for State.
6. Learned counsel mostly confined himself to the point that the appellant was a
passenger who started from Taftan to get vehicle towards Quetta. In the meanwhile present
three vehicles reached, he sig naled them to stop and get lift, as such, they took him, but in the
middle way did not allow him to get down. They later on implicated him in the present
matter. Learned counsel further argued that for the sake of arguments if the prosecution story
be trea ted correct that the appellant was arrested along with driver Muhammad Yousaf even
then there is nothing on record to show that the appellant had knowledge or conscious
possession of the alleged contraband or illicit narcotics. Actually according to the pr osecution
case Muhammad Yousaf was the person, who was driving or controlling the vehicle, from
which 1280 kilograms of opium was recovered, so on this score too, the appellant is entitled
to be acquitted of the charge.
7. Learned State counsel alleged t hat the prosecution has established and proved the case
against the appellant, whereas nothing has come from his side to show that no opium has
been recovered from the alleged vehicle, in which he was boarding along with driver. So
being the recovery of th e opium has been established from the Land Cruiser, in which the
appellant was travelling, the burden of proof that he had been falsely implicated in the present
matter shifted upon the appellant, in which he badly failed to discharge it. According to
learned counsel the case is genuine one, recovery of 1280 kilograms of opium from the
vehicle has been proved, and the learned Special Judge, CNS Quetta had rightly held the
appellant responsible for the act, therefore, the present appeal has no substance and the same
is liable to be dismissed.
8. After hearing both the sides and perusing the record of the case, we are of the view
that the prosecution has successfully established the recovery of the contraband opium 1280
kilograms from the vehicle, in which t he appellant Abdul Khaliq was sitting along with driver
Muhammad Yousaf. The prosecution evidence further shows that the appellant was a
member of gang, who used to smuggle narcotics from Afghanistan to Iran via Pakistan. As
the P.Ws. have successfully est ablished the recovery of opium from the possession of the
appellant and his colleagues and their evidence is corroboratory, consonant and convincing
one. No doubt the learned trial Court very ably has appreciated the evidence and has come to
a right conclu sion, however, for the sake of justice, equity and fairplay, we may mention, that
the statement of P.W.1 Captain Shehzad Yunas, statement of P.W.2 Major Sajjid Sharif,
statement of P.W.3 Khalid Khan, the Investigating Officer of the case seems based on hon est
footings and there does appear no material contradiction in their statements showing that the
appellant was involved or implicated falsely in the present matter. Nothing has come from
the side of the appellant to show that the ANF officials had any enmity or ill will
towards him due to that he was involved in the alleged offence.
9. The question of conscious possession repeatedly urged by the counsel Mr.
Muhammad Yousaf Mengal for the appellant, however, suffice to say that a huge quantity
consisting upon cloth bags lying on rear seats of the Land Cruiser, in which the appellant was
found travelling at night time fully giving this impression that the appellant was involved
along with the driver and he had knowledge and was in conscious posse ssion of the articles.
No doubt section 29 of the Control of Narcotic Substances Act, 1997 does not absolve the
prosecution of its parameter to prove its case beyond any doubt and burden shifts to the
accused only after prosecution has established the reco very beyond reasonable doubt,
whereas, admittedly in the instant matter this duty was discharged successfully by the
prosecution so then duty shifts to the accused to disprove the prosecution version. Prima facie
in the instant case the appellant has faile d to show that he had no conscious possession over
the illicit articles or to rebut the prosecution version. On our perusal we see no force in the
version of appellant and his statement is so irrational and unconvincing one that same itself
indicating his involvement in the alleged offence, thus in absence of any reliable or tangible
material in support of the appellant's version makes him liable for the alleged offence. In this
respect we have benefited our view from 2010 SCMR 927, reported in case of Muha mmad
Noor and others v. The State, in which the Hon'ble Supreme Court while fixing the
responsibility in a similar circumstances on recovery of 268 Kilograms from the secrete
cavities of a vehicle held that the driver and his co -accused were in knowledge of the
illicit articles, however, for the sake of facility we are giving the relevant portion of the
judgment as under: --
"Ss. 9(c) & 29 ---Reappraisal of evidence ---Recovery of narcotics ---Possession of
driver ---Scope ---Charas wei ghing 268 kilograms was recovered from secret cavities of
vehicle ---Driver of the vehicle and his co -accused were convicted under S.9(c) of Control of
Narcotic Substances Act, 1997, and were sentenced to imprisonment for life ---Conviction
and sentence awar ded by Trial Court was maintained by High Court ---Validity ---Accused
who was driving the vehicle was in possession of the vehicle and also in possession of the
articles whatever lying in it ---Allegation against co -accused was that on his information
secre t cavities of vehicle were opened and Charas was secured ---Co-accused had knowledge
of availability of Charas in secret cavities of the vehicle, therefore, he was also involved in
the case along with driver ---Supreme Court declined to interfere in the conv iction and
sentence awarded to both the accused -Appeal was dismissed."
Thus in the above discussed circumstances, we hold that there is no defect or lacuna in the
prosecution evidence so as there does appears no misappreciation or non -reading of the
evidence. As such the present appeal has no substance and the same is dismissed.
MWA/56/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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