2012 Y L R 794
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, J J
ATTA ULLAH ---Appellant
Versus
THE STATE ---Respondent
Criminal (CNS) Jail Appeal No.64 of 2009, decided on 30th November, 2011.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c), 20 & 21 ---Appreciation of evidence ---Provisio ns of S.103, Cr.P.C. had
categorically been excluded by S.25 of the Control of Narcotic Substances Act, 1997 ---Police
Officials having no ill -will or personal grudge against the accused were competent witnesses -
--Police witnesses had furnished straightforw ard and confidence inspiring evidence ---Huge
quantity of "charas" could not be planted on accused by Police Officials from their own
resources ---Non-compliance of Ss.20 and 21 of the Control of Narcotic Substances Act,
1997, in the peculiar circumstances o f the case would not make the conviction of accused
illegal ---Narcotic was recovered not from a residential house but from a narcotic den ---Spy
information having been received after office hours, search warrants could not be obtained ---
Investigation of th e case by CIA being an irregularity could not vitiate the whole trial
entitling the accused to acquittal ---Reader of Investigating Officer had recorded the
statements of witnesses under his directions and not independently ---Tampering of the
parcels of rec overed narcotic having not been agitated, mere delay in sending the same for
chemical analysis was not favourable to accused ---Samples were drawn from 264 rods of
"charas", each rod weighing ten grams, as such accused was found in possession of 2640
grams of "charas" and he had been rightly convicted and sentenced ---Appeal was dismissed,
in circumstances.
PLD 2004 SC 856; State through A.G. Sindh, Karachi v. Hemjoo 2003 SCMR 881; PLD
2008 SC 376; 2008 SCMR 991; 2009 SCMR 431; Fida Jan v. The State 2001 S CMR 36;
Muhammad Hanif v. The State 2003 SCMR 1237; Kausar Irshad v. The State 1998 SCMR
1148 and Khawand Bakhsh and others v. The State and others PLD 2000 SC 1 ref.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 20 & 21 ---Searc h and investigation ---Authorized Officer under the law in exceptional
cases in which search warrant could not be possibly obtained before conducting the raid, can
proceed for conducting of raid without warrant, but such power cannot be allowed to be used
in every case in normal circumstances.
State through A.G. Sindh Karachi v. Hemjoo 2003 SCMR 881 ref.
(c) Criminal Procedure Code (V of 1898) ---
----S. 156(1)(2) ---Investigation in cognizable case ---Violation by Police (CIA) ---Effect ---
Criminal Invest igating Agency is part of the Police force; it is in fact a special branch carved
out from the Police force for special purpose ---Violation of S.156(1), Cr.P.C. may not vitiate
trial if no serious prejudice has been caused to the accused resulting in misca rriage of justice
in view of S.156(2), Cr.P.C.; it does not mean that the CIA personnel should knowingly
violate the said provision of Criminal Procedure Code, 1898 ---Criminal Investigating Agency
is legally duty bound to ensure the supremacy of law.
Kausar Irshad v. The State 1998 SCMR 1148 ref.
Obaidullah Quresh for Appellant.
Haji Liaquat Ali, Additional Prosecutor General for the State.
Date of hearing: 1st November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed ag ainst the
judgment dated 27th October, 2009, passed by Special Judge, under the Control of Narcotic
Substances Act, 1997, Lasbella at Hub, whereby appellant Attaullah son of Moula Dad has
been found guilty for committing an offence under section 9(c) of th e Control of Narcotic
Substances Act, 1997 (the C.N.S. Act) and has been convicted and sentenced to suffer' R.I.
for fourteen (14) years and to pay a fine of Rs.1,00,000 (rupees one lac only), or in default
whereof to further undergo' S.I. for one (01) yea r. Benefit of section 382 -B of the Cr.P.C. was
also extended in favour of the appellant.
2. The prosecution story, in brief, is that on 31st August, 2005, two cases; one under
section 9(c) of the C.N.S. Act and other under section 13(e) of the Pakistan A rms Ordinance,
1965, were registered at Police Station, Hub, on the report of Jameel Ahmed, IP, vide F.I.R.
Nos.112 and 114 of 2005 respectively, wherein he alleged that, on receiving spy information
to the effect that accused Attaullah, belonging to Rehma n dacoit group, is present in his
house situated at Jam Yousaf Colony, having huge quantity of charas brought by him from
Quetta, he, along with other police party, raided the house of the accused, where seven
persons were found present, out of whom Attaul lah and Lal Muhammad were armed with
Kalashnikovs and Sajjid Ali with repeater gun, who were overpowered. It was further alleged
that four drums, present in the courtyard, were checked, which resulted in recovery of 264
bundles of charas, weighing 155 kilo grams. In addition to above, another quantity of charas,
in shape of loose rods, weighing 25 kilograms, was also recovered from the drums, which
were taken into possession and sealed into parcel after drawing samples and the appellant
along with co -accuse d (since acquitted) were arrested.
3. On the stated allegations, a formal charge was framed and read over to the appellant,
to which he did not plead guilty and claimed trial. The prosecution, in order to substantiate
the accusation, produced three witne sses, namely, P.W.1 Gul Hassan, S. -I., P.W.2 Siraj
Ahmed, S. -I., and P.W.3 Jameel Ahmed, DSP.
4. In his examination under section 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of fact levelled against him by the pros ecution and
professed his innocence. However, he neither made statement on oath under section 340(2) of
the Cr.P.C., nor produced any witness in his defence.
5. On conclusion of the trial, the trial Court found the prosecution's case against the
appellan t to have been proved beyond reasonable doubt, thus, he was convicted and
sentenced, as detailed above.
6. We have heard Mr. Obaidullah Quresh, learned counsel for the pauper appellant and
Haji Liaquat Ali, learned counsel for the State, in the light of the material available on the
file. The main contentions of learned counsel for the pauper appellant are as under: --
(a) that F.I.R. was registered at Police Station Hub, but the investigation was carried out
by the CIA staff, which was improper and ille gal;
(b) that the recovery is doubtful, as the mandatory requirements of section 103 of the
Cr.P.C. and sections 20 and 21 of the C.N.S. Act had not been complied with by seizing
officer and the witnesses being police officials cannot be relied upon;
(c) that no evidence was brought on record about the ownership of the house or that the
appellant was in conscious possession of the house in question, therefore, his conviction,
without proving conscious possession or ownership of the house, is bad in la w and liable to
be set aside;
(d) that the conviction is also liable to be set aside, as the articles were sent to FSL for
expert's opinion with unexplained delay, making the whole case of prosecution doubtful, and
(e) that the samples were not drawn from each rod, as such, the appellant was entitled to
acquittal and according to prosecution witnesses, reader of Investigating Officer had recorded
the statements of witnesses, which means that in actuality the reader has conducted the
investigation, who was not authorized to do so under the law.
In support of his arguments, learned counsel placed reliance on the judgments reported in
PLD 2004 SC 856, 2003 SCMR 881, PLD 2008 SC 376, 2008 SCMR 991 and 2009 SCMR
431.
7. On the contrary, Haji Liaquat Ali, learned counsel for the State, supported the
impugned judgment and maintained that the prosecution had succeeded in proving the guilt
of the appellant to the hilt and the trial Court has discussed the evidence and has given valid
reasons for its conclusio n, which hardly call for interference.
8. We have gone through the contents of the impugned judgment, which show that the
trial Court has discussed the whole evidence and has given valid reasons for its conclusion.
The judgment of the trial Court does no t suffer from any illegality or material irregularity.
The provisions of section 103 of the Cr.P.C. have categorically been excluded as per
provisions of section 25 of the C.N.S. Act. So far as the evidence of police witnesses is
concerned, we are of the o pinion that the police officials, who have no ill -will or personal
grudge against the accused, would be competent and their evidence cannot be discarded, only
for the reason that they are police officials. They have furnished straightforward and
confidence inspiring evidence and there is nothing on record to show that they deposed
against the accused maliciously or out of animus. It cannot be believed that police officials
would plant such a huge quantity of narcotic on the accused from their own resources.
9. As regards the violation of sections 20 and 21 of the C.N.S. Act is concerned, it is
suffice to say that in a judgment of "Fida Jan v. The State" reported in 2001 SCMR 36,
Hon'ble Supreme Court held that non -compliance of provisions of section 20 of the C.N.S.
Act, could not be considered a strong ground for holding that the trial of accused was bad in
the eye of law, as such provisions were directory in nature, whereas in a judgment of "State
through A.G. Sindh, Karachi v. Hemjoo" reported in 200 3 SCMR 881, Hon'ble Apex Court
held that, authorized officer under the law in exceptional cases in which the search warrant
could not be possibly obtained before conducting the raid could proceed for conducting of
raid without warrant but such power could not be allowed to be used in every case in normal
circumstances. Even otherwise, it may be noted that the house, from where the narcotic was
recovered, was not a residential house, but a narcotic den. Secondly, the information was
received by P.W.1 at abou t 3-15 p.m., after office hours and it was not possible for him to
have obtained search warrant at the cost of disappearance of the accused and narcotic, as
such, in peculiar circumstances of the case, non -compliance of provisions of sections 20 and
21 of the C.N.S. Act would not make the conviction of the appellant bad in the eye of law.
Reliance can also be placed on a judgment of "Muhammad Hanif v. The State" reported in
2003 SCMR 1237.
10. Adverting to next arguments of learned counsel that the inves tigation was carried out
by the CIA, improperly, which has vitiated whole of the trial, but we are not in agreement
with him, as the F.I.R. was lodged at Police Station, Hub, and mere investigation by the CIA
personnel was an irregularity, but it would not vitiate the whole trial, entitling the appellant to
acquittal. By holding this view, we are fortified from a judgment of "Kausar Irshad v. The
State" reported in 1998 SCMR 1148, wherein it was held as under: --
"As regards the question, as to whether the above illegality/ irregularity if already committed
by the C.I.A. personnel would vitiate the trial, it may be observed that subsection (2) of
section 156, Cr.P.C. expressly provides that: 'No proceeding of a police officer in any such
case shall at any s tage be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.' It is an admitted position that
the C.I.A. is part of the Police Force. It is in fact a special branch carved out f rom the
police force for special purpose. The violation of section 156(1) of the Cr.P.C. may not vitiate
trial if no serous prejudice has been caused to the accused person concerned resulting in
miscarriage of justice in view of above subsection (2) of se ction 156, Cr.P.C., but it does not
mean that the C.I.A. personnel should knowingly violate the above provision of the Cr.P.C.
On the contrary, they are legally duty bound to ensure the supremacy of law."
11. Similarly, we find no substance in the argume nts of learned counsel that investigation
was carried out by reader of Investigating Officer, because it has come on record that reader
of the Investigating Officer had recorded the statements of witnesses under the direction and
not independently. Likewis e, mere delay in sending articles to FSL would not entitle the
appellant to acquittal, as it is not the case of the appellant that the parcels prepared by the
Investigating Officer were tampered with, nor any such suggestion was put to the
Investigating Of ficer. In the said context, reference can be made to a judgment of "Khawand
Bakhsh and others v. The State and others" reported in PLD 2000 SC 1.
12. Reverting to the last limb of arguments advanced by learned counsel for the appellant
regarding non -taking of samples from each and every rod, we are of the view that the
appellant has already been dealt, with leniency, on account of such defect in the prosecution
case. Furthermore, it has come on record that samples were drawn from 264 rods and each
rod wa s weighing 10 grams, therefore, it can safely be concluded that the appellant was
found in possession of 2640 grams of charas and he was rightly convicted and sentenced
under section 9(c) of the C.N.S. Act.
For the aforesaid reasons, we, while finding no merit in the appeal, dismiss the same. The
appellant shall also be entitled to the benefit of section 382 -B of the Cr.P.C.
N.H.Q./166/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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