Abdul Haleem V. The State,

2014 P Cr. L J 1218

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

ABDUL HALEEM ---Appellant

Versus

The STATE ---Respondent

Criminal Appeal No.317 of 2013, decided on 30th April, 2014.

Control of Narcotic Substances Act (XXV of 1997) ---

----S. 9(c) ---Possessing and trafficking narcotics ---Appreciation of evidence ---Statement of vehicle driver, who was a material, important and essential witness, and whose statement provided base to prosecution case, was not recorded ---Half-hearted attempt was made to procure the attendance of said witness, and no effective and coercive method by way of issuing bailable and non -bailable warrants, was applied by the Trial Court ---Driver, while recording statement under S.161, Cr.P.C., did mention his cellphone numbers, which was reflective of the fact that said witness voluntarily recorded his statement under S.161, Cr.P.C.; and attempted to make sure his availability to Police ---District Attorney, also failed to discharge his legal obl igation and responsibility, as there was no occasion for him to drop said important witness ---Prosecution could not leave such an important witness which went to the root of the case, and his statement was necessary for just decision of case ---By dropping that important witness, the District Attorney appeared to have exceeded his authority ---By permitting prosecution to drop that witness, the Trial Court had committed material irregularity, sufficient to vitiate the impugned judgment ---Impugned judgment was set aside and case was remanded to the Trial Court with the direction to procure the attendance of the driver of the vehicle; after recording his statement and the statement of accused, Trial Court should decide the case on its own merits in accordance wi th law.

1998 PCr.LJ 2008; PLD 2001 Pesh. 152; 2004 YLR 3030; 1996 SCMR 67; 1995 SCMR 1345; 2003 SCMR 881; 1995 MLD 92; 2013 SCMR 302 and PLD 2012 SC 380 ref.

Munir Ahmed Mengal for Appellant.

Muhammad Yahya Baloch, D.P. -G. for the State.

Date o f hearing: 15th April, 2014.

JUDGMENT

MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the judgment dated 29th October, 2013 passed by the learned Special Judge, Control of Narcotic Substances, Quetta/Sessions Judge (Ad hoc) (hereinafter referred to as Special Judge), whereby the appellant was found guilty under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as Act, 1997) and sentenced as under: --

To suffer life imprisonment with fine of Rs. 50,000 (Rupees fifty thousand). In default of payment of fine to further undergo for a period of three months' S.I. Benefit of section 382 -B, Cr.P.C. was extended in his favour.

2. Facts relevant, for the disposal of instant appeal are that on 17t h January, 2013 the Complainant Muhammad Naseem, Naib Subedar Ghazaband Scout lodged F.I.R. No.4/2013, under section 9(c) of the Act, 1997 with Police Station New Sariab, Quetta. It was alleged in the F.I.R. that on the fateful day he along with other F.C. personnel were present at Hazar Ganji 'Naka', in the meanwhile at about 3 -00 p.m. a Wagon reached from Mastung side. The Wagon was stopped and checked. During checking on roof of the Wagon they found a White colour bag ( ) containing 25 packets of raw 'Ch aras' weighing 24 kilo grams. The passengers were de - boarded from the Wagon and on query one passenger (appellant) claimed the ownership of the same. On recovery of 'Charas', the appellant and contraband item were produced before the SHO Police Station New Sariab Quetta. The police separated 50 grams 'Charas' for Chemical analysis and got it sealed in Parcel No.1, while the remaining substance was sealed in Parcel No.2. The appellant was arrested and F.I.R. was lodged against him. After registration of case the investigation commenced. On completion of investigation, 'challan' of the case was submitted before the Special Judge, Quetta for trial.

3. On 26th February, 2013 charge was framed to which the appellant did not plead guilty and claimed trial. Prose cution in order to substantiate the accusation against the appellant produced P.W.1 Hawaldar Omar Daraz (recovery witness), who produced recovery memo as Exh.P/1 -A, Art:P/1, 2, and 3, P.W.2 Muhammad Naseem, Naib Subedar (Complainant), produced Marasila as Ex:P/2 -A. P.W.3 Mukhtiar Ahmed ASI produced F.I.R. as Exh.P/3 -A, FSL report as Exh.P/3 -B, 'challan' as Exh.P/3 -C. Thereafter, the appellant was examined under section 342, Cr.P.C., wherein he denied all the incriminating pieces of evidence. However; neithe r the appellant 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 hearing the parties and evaluating the evidence found the appellant guilty under se ction 9(c) of the Act, 1997 as such, convicted and sentenced him as mentioned hereinabove, hence instant appeal.

5. We have heard Mr. Munir Ahmed Mengal, Advocate for the appellant whereas the State was represented by Mr. Yahya Baloch DPG.

The learned counsel for the appellant submitted that the prosecution miserably failed to bring home the guilt of appellant without shadow of doubt but the trial Court illegally, unlawfully and without any justification convicted and sentenced the appellant which has caused serious injustice to the appellant. The evidence produced by the prosecution was not of such standard which could have constituted grounds for recording conviction against the appellant but this aspect escaped notice of the learned trial Court. Lear ned counsel canvassed that there are material contradictions in the statements of P.Ws. but the trial Court while passing the judgment impugned herein failed to appreciate the evidence in its true perspective. There is inordinate delay in lodging the F.I.R . The prosecution witnesses did not corroborate each other on point of time with the result, serious doubt stood created in the prosecution case but the trial Court without giving due weight to the inherent defects and discrepancies of the prosecution case illegally recorded conviction against the appellant which is not sustainable under the law. It was next argued that the sample for chemical analysis was sent with delay and there was no representative sample, which too, cast serious doubt on prosecution c ase. Learned counsel relied upon the following judgments: --

(i) 1998 PCr.LJ 2008.

(ii) PLD 2001 Peshawar 152.

(iii) 2004 YLR 303.

(iv) 1996 SCMR 67.

(v) 1995 SCMR 1345.

(vi) 2003 SCMR 881.

(vii) 1995 MLD 92.

(viii) 2013 SCMR 302; and

(ix) PLD 2012 SC 380.

Whereas, on the other hand learned D.P. -G. appearing for the State while controverting the contentions advanced by learned counsel for the appellant seriously opposed the appeal and submitted that the prosecution has fully been able to prove the guilt of appellant to the hilt. No material contradictions in the statements of P.Ws., constituting a valid ground for acquittal of the appellant could be pointed out by the learned counsel for the appellant. The Expert's positive report proves that the substance recovered from the vehicle was 'charas', as such, it cannot be said that prosecution failed to prove the charge against the appellant. He stressed that the prosecution has fully established the guilt of appellant to the hilt and once pro secution succeeds in establishing recovery, the burden shifts upon accused to prove his innocence. He further argued that the recovery was witnessed by P.Ws. and the prosecution produced eye -witnesses of the recovery. Appellant has not alleged any enmity a gainst the complainant or rest of the prosecution witnesses. It is beyond comprehension that the F.C. personnel would foist such a huge quantity of narcotic from their own pocket against the appellant, which too, for no rhyme or reason. The witnesses fully supported the prosecution case on each material aspect of the case. They were subjected to lengthy cross -examination but nothing favourable could be extracted by the defence. 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 interference, as such; the appeal is liable to be dismissed.

6. We have considered the contentions raised by the learned counsel for the parties and have gone through the available record. The perusal of record reflects that besides official witnesses one Muhammad Amin son of Ghulam Rasool, caste Shahwani, the driver of the vehicle has also been cited as witness in the 'challan'. Durin g pendency of the proceedings before the trial Court, Criminal Bail Application No. 16 of 2013 was moved by the appellant in this Court which was disposed of vide order dated 9th May, 2013 wherein it has been observed as under: --

"However; the trial Cou rt is directed to at least record the statement of Wagon driver namely Muhammad Amin within one month from the receipt of this order; whereafter the applicant will be at liberty to repeat his bail application before the trial Court, which the trial Court s hall decide on its own merits accordingly."

7. The perusal of record further reflects that the statement of Wagon driver namely Muhammad Amin was not recorded. A half hearted attempt was made to procure the attendance of witness but no effective and coer cive method by way of issuing bailable and non -bailable warrants was applied by the trial Court, whereas, while recording statement under section 161, Cr.P.C., the driver did mention his cell numbers which is reflective of the fact that the said witness vo luntarily recorded his statement under section 161, Cr.P.C. and attempted to make sure his availability to police. In view of the observations made by this Court in Criminal Bail Application No. 16 of 2013 it was inevitable upon the trial Court to have had left no stone unturned to procure the attendance of witness namely Muhammad Amin son of Ghulam Rasool. The trial Court failed to fulfil its legal obligation and did not adhere to the direction given by this Court. Moreover, the District Attorney also utte rly failed to discharge his legal obligations and responsibility. There was no occasion for the District Attorney to have dropped this important witness. We are mindful that it is the prerogative of the prosecution to produce whatever number out of witness es mentioned in the calendar of witnesses and drop the witness whose statement is not necessary or the case stands fully proved at the strength of evidence produced by the prosecution but, nevertheless, to our perception, the D.A. cannot drop the material, important and essential witness whose statement provides base to prosecution case or the adifice of prosecution case is built upon such evidence. So in such circumstances the prosecution could not drop such an important witness which goes to the root of t he case or the statement is otherwise necessary for just decision of case. By dropping this important witness the District Attorney appears to have exceeded his authority, similarly keeping in view the directions of this Court vide order dated 9th May, 201 3 it can safely be concluded that by permitting prosecution to drop this P.W. the trial Court committed material irregularity sufficient enough to vitiate the judgment impugned.

Consequently, without commenting on merits of the case, we are inclined to accept this appeal and set aside the impugned judgment dated 29th October, 2013 passed by the learned Special Judge, Control of Narcotic Substances, Quetta/Sessions Judge (Ad hoc). The case is remanded to the trial Court with the directions to procure the attendance of witness namely Muhammad Amin son of Ghulam Rasool the driver of wagon. After recording statement of said witness the statement of appellant should be recorded under section 342, Cr.P.C., with opportunity to record his statement as envisaged b y section 340(2), Cr.P.C. and produce defence witness in his favour if the appellant so contemplates, thereafter, the trial Court after hearing both the parties to decide the case on its own merits in accordance with law preferably within the span of two m onths after the receipt of this judgment.

HBT/41/Bal. Case remanded.