2012 P Cr. L J 1729
[Balochistan]
Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ
NAIMATULLAH ---Appellan t
versus
THE STATE ---Respondent
Criminal Appeal No.293 of 2008, decided on 19th June, 2012.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c)---Possession of narcotics ---Appreciation of evidence ---Accused was driver of the
vehic le in question and was intercepted at a check; post and after search 150 kilograms of
charas was alleged to have been recovered from secret cavities of the vehicle ---Trial Court
convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997, but
acquitted the co -accused, who was a passenger in the vehicle ---Contentions of the accused
were that on the same set of evidence the co -accused had been acquitted of the charge; that
according to the F.I.R. 150 kilograms of charas was recovered wh ereas according to one of
the prosecution witnesses after separating of samples for chemical analysis, the quantity of
charas was still 150 kilograms, and that samples were sent for analysis after a delay of five
days---Validity ---Co-accused, who took the plea of taking a lift on the vehicle of the
accused, had been acquitted by the Trial Court on the grounds that his case was on a
different footing to that of the accused, as there was no direct or indirect evidence to
connect him with the commission of the crime; as his knowledge about concealment of
narcotic could not be brought on record; as he was a person of more than 65 years of age
and had no relationship or tribal connection with the accused, and as there was a letter on
record which revealed that re lative of the co -accused had complained of his disappearance
when he was supposed to be travelling back home ---Said findings of the Trial Court in
relation to the acquittal of the co -accused were plausible and justifiable ---All the
prosecution witnesses we re cross -examined at length but the defence failed to create any
dent or doubt in the prosecution case qua the accused ---Report of Chemical Analyst proved
that recovered narcotic was charas ---Defence failed to point out that the samples were
tampered with and did not dispute their safe custody, therefore, contention of accused
regarding delay in sending samples was not helpful to him ---Accused was intercepted at a
blockade, therefore, there was hardly any occasion for availability of private witnesses and
it was a recognized fact that general public remained reluctant to become a witness in cases
similar to the present one ---Accused being the driver of the vehicle was in conscious
possession of the recovered narcotic ---Appeal was dismissed and conviction and sentence
awarded by the Trial Court was maintained.
2010 SCMR 841 and 2010 SCMR 927 ref.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----Preamble & S. 9 ---Cases concerning possession and transportation of narcotics ---Minor
procedural dis crepancies ---Effect ---In narcotic cases approach of the court should be
dynamic and minor irregularity or discrepancies must be overlooked.
Ismaeel v. The State 2010 SCMR 27 ref.
Tahir Hussain Khan for Appellant.
Date of hearing: 14th May, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the judgment
dated 21st October, 2008 passed by the learned Special Judge. Control of Narcotics
Substances, Quetta (hereinafter referred to as Special Judge) whereby the appellant w as
found guilty under section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter
referred to as Act, 1997) and was sentenced as under:
(i) to suffer life imprisonment with fine of Rs. 200,000 (Rupees two lacs only).
(ii) In default of paymen t of fine to further undergo for a period of one year's S.I. Benefit
of section 382-B, Cr. P. C. was extended in his favour.
2. Facts relevant for disposal of instant appeal are that on 10th November, 2007, complainant
Shahid Qadeer ASI P.S Airport, lodg ed F.I.R. No.221 of 2007 under section 9(c) of the Act,
1997, alleging therein that on the fateful day he received a credible information regarding
trafficking of narcotics from Gulistan to Quetta via Baleli Check Post, Quetta in a white
colour Landcruiser bearing Registration No.BC -8502. On such information they started
surveillance/checking of vehicles and suspects vigilantly. At about 3 -45 p.m. they found a
vehicle being driven by appellant accompanied by co -accused Wali Muhammad sitting on
front seat. T he same was intercepted and checked. During search they recovered 150 slabs
(weighing 150 -kgs) baked charas, which was concealed in the secret cavities of vehicle. The
appellant along with co -accused were arrested and accordingly a Murasla was sent for
registration of case. After registration of case, the investigation commerfced. On completion
of investigation, challan of the case was submitted before the Special Judge, Quetta for trial.
3. On 9th April, 2008 charge was framed to which the appellant did not plead guilty and
claimed trial. Prosecution to substantiate the accusation against appellant produced P. W.1
Shahid Qadeer ASI (complainant), P.W.2 Muhammad Zahir H/C the recovery witness and
P.W.3 Ayaz Haider the (Investigating Officer). Thereafter th e appellant was examined under
section 342, Cr.P.C., wherein he denied the incriminating pieces of evidence. However,
neither he opted to record his statement on oath as envisaged under section 340(2), Cr.P.C:
nor produced any witness in his defence.
4. The learned trial Court after evaluating the evidence and hearing the parties found the
appellant guilty under section 9(c) of the Act, as such convicted and sentenced him as
mentioned above, however, co -accused was acquitted of the charge, hence instant a ppeal.
5. We have heard Mr. Tahir Hussain Khan Advocate for appellant whereas Syed Pervaiz
Bukhari, Additional P. -G. represented the State.
Learned counsel for appellant argued with.great vehemence that On same set of evidence co -
accused was acquitted of the charge but the appellant was convicted. Learned counsel
stressed that appellant has been substituted for Naimatullah whereas in fact the appellant is
Nazar Gul. P.W.2 is a stock witness of prosecution. Learned counsel emphasized that
according to F. I.R. in all, 150 -Kgs baked charas was recovered from the vehicle whereas
according to P.W. after separating samples for chemical analysis, still the quantity of
recovered charas was 1.50 -Kgs. He further argued that the samples were sent for Chemical
Expert 's report after delay of five days which throw serious shadow of doubt on prosecution
case entitling the appellant to be acquitted of the charge by extending benefit of doubt his
favour. The evidence produced by the prosecution was not of such standard whi ch could
constitute reasons for recording conviction against appellant but the trial Court failed to take
into consideration this important aspect of the case and illegally convicted the appellant. He
stressed that undue weight was given to prosecution evi dence. The recovery was not testified
by any independent witness. He relied upon 2010 SCMR 841 and 2010 SCMR 927.
Whereas, on the other hand learned Additional P. -G. while controverting the contentions
advanced by learned counsel for appellant seriously opposed the appeal and submitted that
the appellant has not disputed his presence and arrest from the vehicle. So much so recovery
of contraband item i.e. charas from the vehicle has not been disputed by the appellant. The
Expert's positive report proved t hat the substance recovered from the vehicle was charas, as
such it cannot be said that prosecution failed to prove the charge against appellant. He
stressed that the prosecution has fully established the guilt of appellant to the hilt and once
prosecution succeeds in establishing recovery, the burden shifts upon accused to prove his
innocence. He next argued that the recovery was witnessed by P.Ws. and the prosecution
produced eye -witnesses of the recovery. The learned trial Court after proper appraisal of
evidence has convicted the appellant, as such; the judgment impugned herein is not open to
any exception. The defence has failed to make out a case for acquittal, as such; the appeal is
liable to be dismissed.
6. We have considered the contentious put f orth by the parties learned counsel and have gone
through the record of the case minutely. It may be observed that as per F.I.R. the police
personnel were on duty at Baleli Check Post. They received secret information regarding
smuggling of contraband item s from Gulistan to Quetta by means of vehicle bearing
Registration No.BC -8502. At about 3 -45 p.m. they found a vehicle being driven by appellant
accompanied by co -accused Wall Muhammad sitting on front seat. The same was intercepted
and checked. During sea rch they recovered 150 slabs (weighing 150 -kgs) baked charas,
which was concealed in the secret cavities of vehicle. To prove the accusation prosecution
produced P.W. Shahid Qadeer ASI (complainant) produced Exh. P/ 1 -A F.I.R., P.W.2
Muhammad Zahir H/C the recovery witness produced recovery memo Exh.P/2 -A and P.W.3
Ayaz Haider the (Investigating Officer) produced Exh.P/3 -A Expert's report. All the
prosecution witnesses were cross -examined at length but the defence failed to create any dent
or doubt in prose cution case. The P.Ws. fully supported the prosecution case. Despite lengthy
cross -examination the P.W.s remained firm and could not be shaken during the cross -
examination. F.I.R. was lodged promptly. Report of Ballistic Expert further proved that the
recovered item were Charas. The trial Court after proper appraisal of evidence and taking all
aspects of the case in to consideration has found the appellant guilty and by delivering a well -
reasoned judgment rightly convicted the appellant. Perusal of judgment reveals that there is
no defect in the same nor the defence could point out any illegality or irregularity in the
judgment impugned. So far the contention of learned counsel that samples were sent to
Chemical Expert after five days is concerned, it may be observed that the said argument is
not helpful to the defence for the reasons. Firstly, the defence failed to point out that the
samples have been tampered with and secondly; in our perception the same is not fatal to the
prosecution because the safe cust ody of samples have not been disputed by the defence. The
next contention of learned counsel that the appellant has been substituted for Naimatullah
whereas he is Nazar Gul has too no force because the defence has not produced an iota of
evidence which cou ld prove such contention. Such a plea was raised for the first time before
this court, which, in our considered opinion is neither plausible nor believable. Suffice to
observe that legally if the accused raises a special plea, he is bound to prove the same there is
no material whatsoever to support the argument. The learned trial Court after proper appraisal
of entire evidence has reached to a proper conclusion. There is no misreading or non -reading
of evidence. The prosecution has succeeded to establish th e guilt to the hilt. Appellant was
intercepted at a blockade, therefore, in such like cases, there is hardly any occasion for
availability of private witnesses. Furthermore, this is a judicially recognized fact that in such
like eases the general public re mains reluctant to become a witness and non -association of
private witness is not fatal to the prosecution case. In narcotics cases approach of the Court
should be dynamic and minor irregularity or discrepancies must be overlooked. In this regard
we are fo rtified by the dictum laid down in the judgment titled as 'Isntaeel v. The State
reported in SCMR 2010 page -27. Relevant observations therefrom are reproduced
hereinbelow:
"It is now settled proposition of law by flex of time that in the case of transpor tation
or possession of narcotics, technicalities of procedural nature or otherwise should
be overlooked in the larger interest of the country, if the case stands otherwise
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
record ed notwithstanding procedural defects as observed by this Court in Munawar
Hussain's case 1993 SCMR 785".
7. As far as the acquittal of co -accused on the same set of evidence is concerned, this point is
not helpful to appellant because the learned trial Court has dealt with this aspect of matter
very competently by holding as under: --
, "So far as the case of co -accused Wali Muhammad is concerned, who according to
defence plea after taking lift was on his way to Quetta, arrested by the police and
involv ed in the instant case, in my opinion his case is on different footings as there
is no direct or indirect evidence connecting him with the commission of crime nor
his knowledge about the concealment of contraband could be brought on record nor
any document ary evidence with regard to the ownership of vehicle etc. could be
recovered from his particularly with the allegation of his having knowledge of
concealment of contraband rather his defence plea was supported. Furthermore he is
an old age person of more t han 65 years having no relationship with the accused
Naintatullah nor he is of his tribe person. Apart from this a letter dated 14 -11-2007
is also available on record submitted by the relatives of accused Wali Muhammad
before SHO Police Station Airport, Qu etta wherein they complained the
disappearance of accused, who was on his way from Kuchlak to Quetta ---for which
in my opinion he should be benefited plus during the course of arguments learned
ADA did not controvert the arguments advanced by the learned c ounsel for accused
Wali Muhammad with regard to his innocence with the submissions that no concrete
evidence connecting the accused with the commission of crime is available on
record."
8. We have no reason to differ with the findings recorded by the tri al Court which are legal,
plausible and justifiable.
9. Even otherwise, the courts are required to sift the grain from chaff. Applying this principle,
it can safely be concluded that the appellant being in conscious possession as driver of the
vehicle wa s correctly found guilty and rightly sentenced. In the light of what has been
discussed hereinabove, we are of the considered opinion that the prosecution has fully
established the guilt of appellant to the hilt; whereas the defence has failed to make out a case
for interference in the judgment impugned. Thus; the appeal lacking legal weight is
dismissed, whereas; the conviction and sentence awarded by the learned trial Court vide
judgment impugned dated 21st October, 2008 is maintained.
MWA/59/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.