2012 P Cr. L J 303
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ
MUHAMMAD ILYAS ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 211 of 2010, decided on 27th October, 201 1.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 29 ---Possessing and trafficking narcotics ---Appreciation of evidence ---
Narcotics substance was recovered from the vehicle which was in control of accused being
its driver and owner ---Accused had not denied the recovery from the vehicle while he
was driving the same; in view of such admitted position, contradictions and improvements
in the statements of the prosecution witnesses, were of less considerati on---Legal
presumption of the offence, would be against the accused as provided under S.29 of Control
of Narcotic Substances Act, 1997 ---Accused claimed his innocence on the basis of the
admission made by co -accused, while replying to the charge ---Such fact was less beneficial
to accused as co -accused only admitted his guilt to the extent of four Kgs of Hashish,
while he showed his no concern with the remaining narcotic ---Recovery of 25 Kgs
Charas was an established fact, but accused h ad no explanation about the remaining 21 Kgs,
of the contraband ---Accused had to be accounted for the remaining 21 Kgs. narcotics
substance, recovery of which from the vehicle was an established fact ---Accused, in
circumstances, had completely fai led to make out any case in his favour ---Sentence awarded
to accused by the Trial Court, was upheld, in circumstances.
Bashir Ahmed Qazi for Appellant
Atiq Ahmed Khan, D.P. -G.for the State
Date of hearing: 20th April, 2011.
JUDGMENT
MRS. SYEDA T AHIRA SAFDAR, J. ---The appellant Muhammad Ilyas, being aggrieved
of judgment dated 6th August, 2011 of Special Judge, Control of Narcotic Substances Act,
1997, Quetta, whereby he has been convicted for the offence, and sentenced under section
9(e) of Contr ol of Narcotic Substances Act, 1997 (Act XXV of 1997), thereby awarded
imprisonment for life with fine of Rs.50,000 (Rupees fifty thousand only) preferred instant
appeal on grounds that impugned judgment is based on misappreciation, and non -
appreciation of the evidence. It is further contended that the trial court has failed to appreciate
the fact that no independent witness was produced by the prosecution, despite the fact that the
private persons were available at the site. Further, the material contradic tions appearing in the
case of the prosecution were not given due consideration, nor benefit of the same was
exercised in his favour. Furthermore, the trial Court has failed to appreciate this important
aspect of the case that he (appellant), along with ma in accused Rehmatullah was apprehended
in the vehicle, and on very first instance, he explained his position being the driver of the
vehicle, accused Zahoor Ahmed being cleaner, and accused Rehmatullah was the passenger,
who had hired the vehicle at Rs.250 (Rupees two hundred fifty only), and the beddings
present in the vehicle, also belongs to co -accused Rehmatullah, as such he had no concern
with the luggage, and the recovered material. Further, contended that the trial Court failed to
appreciate that Reh matullah had admitted that the beddings and the Hashish belong to him.
But despite his (Rehmatullah) confession the trial court failed to appreciate the facts and
circumstances of the case, and erroneously convicted him for the offence. It is also contende d
that there was considerable delay in the lodging of F.I.R. According to the prosecution the
alleged recovery was taken place at 11 -40 p.m. while F.I.R. was lodged at 7 -15 p.m. with a
delay of several hours, that too without any plausible explanation. But this aspect was not
considered. Even the fact that the investigation was entrusted to the Investigating Officer at
4-50 p.m. before lodging of F.I.R. was not considered. All these facts make the case of the
prosecution doubtful, and the benefit of same wa s required to be extended in his favour, but
the trial Court failed to exercise the power, which is contrary to law and norms of justice.
Moreover, the recovered articles were sent to Forensic Science Laboratory with a delay of ten
days, and the recovered material was not sealed at the spot after alleged recovery. In addition
out of recovered 25000 grams of suspected material only fifteen (15) grams were sent for
chemical examination. All these facts make the case of the prosecution highly doubtful, but
the trial Court failed to properly assess the same, and arrived to the conclusion, which is
contrary to facts and law. It is prayed by the appellant that the impugned judgment be set
aside and he be acquitted of the charge.
2. It is case of the prosecu tion that on 20th July, 2009 at about 11 -40 p.m. during
course of checking at Killi Qambrani Road, Killi Kamalo, Quetta, by F.C. personnel a Suzuki
bearing No. KB -3429, dark blue in colour was stopped and checked on suspicion, wherein
the person board ed at driving seat of the vehicle disclosed his name as Muhammad Ilyas son
of Muhammad Ishaque (present appellant), while the accompanied persons disclosed their
names as Rehmatullah son of Amir Bakhsh and Zahoor Ahmed son of Khuda Bakhsh.
Further, during course of search from body of the vehicle, wherein beddings were loaded, a
plastic bag, white in colour was recovered beneath the beddings. And from said white plastic
bag 25 -packets containing baked charas, were found. On recovery of the suspected materia l
F.I.R. No.141 of 2009, Police Station Shalkot, Quetta, was registered on same date at 7 -50
p.m. The contents of police proceedings, as noted down in the F.I.R., reveals that the persons
apprehended including the appellant along with the vehicle, and reco vered contraband were
produced in the Police Station. The recovered articles were weighed at Police Station, which
was found to be consisting of 25 -packets of 1000 -grams each. While the total weight of the
material was 25000 -grams, from which a quantity of fifteen (15) grams were separated. The
parcels of recovered material, and samples were prepared separately. And after completion of
the investigation the police report/challan was submitted before the court, whereupon charge
was framed on 17th September, 2009 for the offence of keeping the contraband in possession,
punishable under section 9(c) of Control of Narcotic Substances Act, 1997. Appellant
Muhammad Ilyas and accused Zahoor Ahmed denied the charge, while accused
Rehmatullah while pleading g uilty to the charge raised plea that: --
"I plead my guilt to the extent of recovery of 4 Kgs Hashish while I have no concern with the
remaining hashish."
During course of the trial two witnesses namely Hawaldar Iqbal Hussain, and Subedar Jamil
Ahmed al ong with Investigating Officer, ASI, Ghulam Muhammad appeared as prosecution
witnesses, and got recorded their statements. While in rebuttal neither the appellant, nor the
co-accused Zahoor Ahmed produced evidence in their defence, and also not recorded th eir
statements on oath. But co -accused Rehmatullah produced one witness Dr. Noor Ahmed
Baloch, who produced Medico -Legal Certificate Exh.D/1, disclosing the fact that accused
Rehmatullah was injured in a road traffic accident on 6th December, 2003, and sus tained
injuries on his head. This accused also opted not to appear as his own witness. After
completion of the trial the learned Special Judge arrived to the conclusion that the
prosecution has successfully established the case to the extent of accused Muh ammad Ilyas
i.e. present appellant, thereby he was convicted under section 9(c) of the Act XXV of 1997,
and sentenced to suffer for Rigorous Imprisonment for life with fine of Rs.50,000, in case of
default with further imprisonment for a period of six (6) months. While it was held that the
case is doubtful to the extent of accused Rehmatullah and Zahoor Ahmed, therefore while
extending benefit of doubt in their favour both the accused persons were acquitted of the
charge. Being aggrieved of the order the ap pellant preferred the instant appeal on the grounds
as mentioned hereinabove.
3. Learned counsel for the parties were heard, while record was perused. Learned counsel for
the appellant while arguing the matter stated that according to contents of F.I.R. the time of
incident is shown as 11 -45 a.m. but the time of report is mentioned as 7 -50 p.m. there was
considerable delay in lodging of F.I.R., that too, without assigning any reason. This fact
established that the report has been made after deliberation. It was further his argument that
according to the statement of Investigation Officer, the investigation was assigned to
him at 4 -15 p.m., which shows that he has been appointed as Investigating Officer even
before lodging of the F.I.R., which make s the case of the prosecution highly doubtful. It was
also argued that though the recovery of twenty five (25) packets of material was alleged but
only fifteen (15) grams of the material was separated, and sent for chemical analysis, which is
not factually possible, as each packet is alleged to be of one Kilogram. This fact creates doubt
about sample from each of the packets. Furthermore, the alleged material was also sent to
Forensic Science Laboratory for chemical analysis with considerable delay that too without
any reason, while the chemical examination report was also not received when the case was
submitted for the trial. It was his contention that all these facts make the recovery doubtful. It
was further argument of the learned counsel that both the prosecution witnesses admitted that
the luggage present in the vehicle belonged to co -accused Rehmatullah, but this fact was not
given due consideration by the trial court. Furthermore, the beddings, present in the vehicle,
were not taken into possession b y the Investigating Authorities. This also creates doubt in
genuineness of the case as made by the prosecution. While replying to the arguments, the
Deputy Prosecutor -General only raised contention that the presence of the appellant being
owner and driver of the vehicle at the time of incident is established. Further, the recovery is
not denied from the defence side. It was his argument that co -accused Rehmatullah was
required to be convicted. His medical certificate, which was produced in defence, was not
free from doubt, while the trial court has placed reliance on it without even checking its
credibility.
4. From the material on record it is an admitted position that at the time of incident the
vehicle bearing Registration No.3429 was driven by the appe llant, while he was apprehended
by the F.C. Personnel during course of checking at Killi Qambrani Road, Killi Kamalo at 11 -
45 a.m. This fact is also not denied by the appellant. It is also an admitted fact that the
recovered contrabands/narcotics substance was recovered from the vehicle, which was in
control of the appellant, being its driver. In view of his (appellant's) own statement and stand
taken in defence by all the accused persons including the appellant, the contradictions and
improvements in the s tatements of the prosecution witnesses are of less consideration. As the
appellant has not denied the recovery of alleged material from the vehicle, while he was
driving the same The appellant also claimed himself to be the owner of the vehicle. Thus, in
view of this admitted factual position, as the vehicle was in custody of the appellant,
therefore, a legal presumption of an offence under the Act XXV of 1997 will be against the
appellant as provided under section 29 of Control of Narcotic Substances Act, 1997, which
reads as under: --
"Section 29 of Control of Narcotics Substances, Act 1997. ---Presumption from possession of
illicit articles. In trials under this Act, it may be presumed, unless and until the contrary is
proved, that the accused has committ ed an offence under this Act in respect of --
(a) Any narcotics drug, psychotropic substance or controlled substance;
(b) Any cannabis, coca or opium poppy plant grown on any land which he has cultivated.
(c) Any apparatus specially designed or any gr oup of utensils specially adapted for this
production of manufacture of any narcotic drug, psychotropic substance or controlled
substance; or
(d) Any material which have undergone any process towards the production of
manufacture of narcotic drug, psychotropic substance or controlled substance or any
residue left of the materials from which a narcotic drug, psychotropic substance or controlled
substance has been produced or manufactured for the possession of which he failed to
account satisfactorily.
Though in view of the same a presumption is drawn against the person, who is in
possession of narcotics substance, but this does not absolve the prosecution from its
primary duty. In view of the material o n record, the prosecution has discharged its
initial burden, as it has been established that the recovery was made from the alleged
vehicle, which was driven by the appellant being owner, and driver of the same. The
presumptio n as provided under section 29 of the Act accrued at this stage. Therefore,
in the given circumstances, the burden shifted on the appellant to account for his
possession of the contraband material. But in present case, the appell ant has not produced
any witness, nor he got recorded his own statement on oath Rather, during course of
examination conducted by the court under section 342 Criminal Procedure Code (Cr.P.C), the
appellant while replying to the question No.13, whereby he w as asked that whether he wants
to say something more, it was his reply that: --
In view of his own reply, he was required to establish that accused Rehmatullah hired the
vehicle for transporting the luggage/beddings, which were owned by him (Rehmatullah). But
no evidence to the fact was produced by the appellant. In view of the same, he has failed to
discharge the burden on him, and in absence of any evidence contrary to the evidence on
record, it shall be presumed that the appellant has committed the offe nce under this Act. The
appellant in addition claimed his innocence on the basis of the admission made by the co -
accused Rehmatullah while replying the charge. But this fact is less beneficial in favour of
the appellant, as co -accused Rehmatullah only admi tted his guilt to the extent of four (4) Kgs
Hashish, while he showed his no concern with the remaining. The recovery of 25 -Kgs charas
is an established fact, but the appellant has no explanation about the remaining 21 kilograms
of the contraband. He has t o be accounted for the 21 -Kgs narcotics substance, recovery of
which from the vehicle is an established fact.
5. As far as, contention of the Deputy Prosecutor -General to the extent of accused
Rehmatullah is concerned. it is to be noted that while replyi ng to the charge framed on 17th
September, 2009, accused Rehmatullah pleaded guilty to the extent of 4 Kgs Hashish with
further contention that he has no concern or information about the remaining hashish. While
appearing before the court and replying to t he question No.13 during course of examination
conducted under section 342, Cr.P.C. he absolutely took a different stance. He stated that: --
He produced Medico Legal Officer, Casualty Department, Civil Hospital, Quetta, Dr. Noor
Muhammad Baloch as witnes s, who produced Medico Legal Certificate Exh.D/1. It was his
statement that on 6th December, 2003 injured Rehmatullah son of Amir Bakhsh was brought
by his cousin for treatment with history of road accident. He noted down the injures, and
prescribed treatm ent given to him. Accused Rehmatullah tried to establish, and also
suggested to the prosecution witnesses that he is suffering from mental disease, and under
treatment. The trial court while recording its findings to the extent of accused Rehmatullah
concl uded that: --
"perusal of entire record with due care and caution reveals that subsequent plea raised
by co -accused Rehmatullah is nearer to real facts, further supported with the dishonest
improvements of P.Ws. 1 and 2, P.W.1 H awaldar Iqbal Hussain and P.W.2 Sobedar
Jamil Ahmed in their statements recorded before this court, by involving the accused
Rehmat Ullah and his alleged admission before them (particularly in cross -examination)
which was not found av ailable on record, which in my opinion was also pre -planed to
avoid confronting their statements recorded under section 161, Cr.P.C. it seems that an
intentional attempt was made to make the above named accused as scapegoat of thi s
transaction, who apparently is an unfit and helpless person."
The trial Court has not conducted the proceedings in accordance with law. If it appeared
during course of trial that the accused person is either mentally unfit, or unable to understand
the proceedings pending against him, the trial Court has to adopt the procedure as provided
under sections 464 to 475, Cr.P.C. But in present case, the trial Court without any basis
arrived to the conclusion about mental health of accused Rehmatulla h. Rather the findings
are based on some assertions made on behalf of the accused Rehmatullah during course
of cross -examination to the prosecution witnesses, which is neither proper nor legal. Despite
the same, the Special Prosecutor, who w as conducting the case before the trial Court,
neither bothered to bring the fact in knowledge of the concerned Authorities, nor
made efforts to challenge the acquittal order made in respect of accused Rehmatullah
at relev ant time. It is highly unfortunate that in a case where a huge quantity of
narcotics substance is in question, a negligent conduct was adopted, which resulted in
acquittal of two accused persons, that too unchallenged. An appropriate action is required to
be taken against the officers concerned. Therefore, a copy of judgment be sent to the
concerned Authorities for information and necessary action, with further direction that the
action taken in the matter be informed to this Co urt through Registrar of the Court for
perusal in Chambers.
6. In view of above discussion the appellant has completely failed to make out any case in his
favour, therefore, the appeal is dismissed being without merits. The sentence awarded to him
by the trial court is hereby upheld.
H.B.T./150/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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