2014 P Cr. L J 27
[Balochistan]
Before Muhammad Ejaz Swati and Muhammad Noor Meskanzai, JJ
ALLAUDDIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal (C.N.S.) No.244 of 2011, decided on 9th September, 2013.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Recovery of narcotics ---Appreciation of evidence---Delay in lodging F.I.R. due to
practical difficulties ---Charas weighing 306 kilograms was recovered from vehicle driven by
accused and Trial Court convicted and sentenced him to imprisonment for life ---Plea raised by
accused was that F.I.R. and statements of prosecution witnesses were recorded with a delay of 7
hours ---Validity ---Authorities apprehended accused along with contraband Charas on 5- 5-2011
at about 3-00 a.m. and due to odd hours of night, it was not possible to proceed towards police
station, therefore, F.I.R. was lodged at 8 -00 a.m. on 5- 5-2011---Time of few hours elapsed due to
practical difficulties, even otherwise mere delay in lodging F.I.R. wa s not fatal nor due to such
delay prosecution derived any undue advantage ---Statements of prosecution witnesses were
worthy of credence and there was no occasion to disbelieve them ---Variation in statements of
witnesses, which were neither material nor ser ious enough to affect case of prosecution, were of
no avail ---Statements of witnesses had to be read as a whole and Court should not pick up
sentences in isolation from entire statement ignoring its proper course ---Judgment passed by
Trial Court was well- founded and High Court maintained conviction and sentence awarded by
Trial Court to accused ---Appeal was dismissed in circumstances.
2010 SCMR 1009; 1999 SCMR 697 and 2011 YLR 1435 distinguished.
S.A.K. Rehmani v. The State 2005 SCMR 364; 2011 SCMR 872 and 2013 SCMR 280
rel.
Syed Ayaz Zahoor for Appellant.
Shoukat Ali Rakhshani, Special Prosecutor, ANF for Respondent.
Date of hearing: 3rd September, 2013.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The appellant was tried, found guilty and convicted,
under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as the
Act, 1997), sentenced to suffer life imprisonment and to pay fine of Rs.200,000 (Rupees Two
Lacs) or in default thereof to further suffer S.I for one year with benefit of section 382 -B, Cr.P.C.
by the Special Judge (C.N.S.) Balochistan, Quetta vide judgment dated 7th October, 2011. The
appellant has challenged the validity of his conviction and sentence by f iling the present appeal
before this Court.
2. The prosecution case as per the contents of the F.I.R. is that on 5th May, 2011 at 6- 00
p.m., the complainant Naib Subedar Iqbal Hussain ANF, Dalbandin has sent a Murasila Exh.P/1-
A to the ANF, Dalbandin for registration of the case to the effect that today i.e. 4th May, 2011,
the high -ups of ANF had received secret information that huge quantity of contraband/charas
would be smuggled in a Toyota Pick- up single cabin from Afghanistan via Taftan to Iran. On
this information, the ANF officials under the supervision of Major Faraz Ahmed at about 6- 00
p.m. departed from ANF, Dalbandin. At about 11- 00 p.m., the raiding party reached Taftan
Sandak Road near Taftan for the above purpose. On 5th May, 2011, at about 3- 00 a.m. a Toyota
Pick-up single cabin vehicle was found coming from Taftan Sandak Road, which was signalled
to stop. The driver stopped the vehicle in the mid of road and tried to flee away from the place of
occurrence, however, the driver of the vehicle n amely Allauddin son of Umar Shah (appellant)
was overpowered and on his pointation, from the rear body of the pickup six sacks of charas, five
sacks containing 250 packets charas in shape of slab, each weighing one kilogram; total 255
kilograms and from the 6th sacks, 112 packets charas weighing 56 kilograms and thus total 306
kilograms charas was recovered. Out of which 500 grams charas were separated from each slab
for chemical analysis and prepared Parcel No.1, while rest of the charas was sealed in parcel
Nos.2 to 7. The appellant was arrested on the spot and a case under section 9(c) of the Act, 1997
was registered at ANF Dalbandin vide F.I.R. No.5 of 2011 dated 5th May, 2011.
3. After completion of usual investigation, the appellant was sent up to fa ce the trial before
the Special Judge, C.N.S. Balochistan Quetta, where charge under section 9(c) of the Act, 1997
dated 2nd June, 2011 was framed against appellant, to which he pleaded not guilty. Whereafter,
the prosecution in order to substantiate the a ccusation, produced three P.Ws. namely P.W.1 Iqbal
Hussain Shah Naib Subedar (complainant), P.W.2 Sepoy Munawar Ali recovery witness and
P.W.3 Naib Subedar Noor Khan (Investigating Officer). Thereafter, the statement of appellant
was recorded under section 342, Cr.P.C., wherein he categorically denied the prosecution
allegations levelled against him, however, he did not opt to examine himself under section
340(2), Cr.P.C. but produced two D.Ws. in his defence namely D.W.1 Mahmood and D.W.2
Shakoor.
4. After hearing the arguments of the parties, the learned trial Court found the appellant
guilty of the offence, as such convicted and sentenced him as mentioned hereinabove, hence this
appeal.
5. Syed Ayaz Zahoor, learned counsel for the appellant contended that the Murasila
Exh.P/1- A as well as F.I.R. Exh.P/3- E and statement of P.W.1 indicate that at the spot, the
appellant made disclosure to the effect that the contraband/charas has been concealed in the rear
body of the vehicle, therefore, the recovery of the contraband has been effected on the basis of
alleged disclosure of the appellant, but the said disclosure has not been put to the appellant while
recording his statement under section 342, Cr.P.C. and in this respect, the charge is also silent,
therefo re, under the law, the evidence/circumstances not put to the appellant in his statement
under section 342, Cr.P.C. cannot be used against him. It is contended by the learned counsel for
the appellant that there are material contradictions in the statements of P.Ws. as well as F.I.R.
and the statement of prosecution witnesses were recorded after delay of seven (7) hours, as such
the impugned conviction/sentence is liable to be set aside. He placed reliance on the judgments
reported in 2010 SCMR 1009, 1999 SC MR 697, 2011 YLR 1435.
On the other hand, Mr. Shoukat Ali Rakhshani, learned Special Prosecutor, A.N.F.
argued that huge quantity of contraband/charas has been recovered from the Toyota Pick- up
being driven by the appellant. The P.Ws. are consistent in their statements on material
particulars. He stated that the FSL report coupled with the statements of prosecution witnesses
were rightly taken into consideration by the trial Court, as the same are sufficient to prove the
guilt to the hilt. Prosecution ha s succeeded in proving the case against the appellant, therefore,
the appeal is liable to be dismissed. He placed reliance on the judgment reported in 2005 SCMR
364.
6. We have heard the learned counsel for the parties at considerable length and carefull y
gone through the record. The record shows that the high ups of the A.N.F. authorities had
received prior information about the intended smuggling of contraband/charas from Afghanistan
to Iran via Taftan and in this respect a raiding party went towards Ta ftan Sandak Road on 4th
May, 2011 at about 11- 00 p.m. and remained alert over there, when on 5th May, 2011 at about 3-
00 a.m. a Toyota Pick- up single cabin driven by appellant, found coming was signaled to stop.
He stopped the vehicle on the road and tried to flee away from the place of occurrence, however,
he was overpowered and on his pointation, contraband/charas as mentioned in the F.I.R.
Exh.P/3- E was recovered. The vehicle was taken into custody along with the recovered
contraband/charas. The appellan t was arrested on the spot and F.I.R. was registered through
Murasila sent by P.W.1, who being an eye -witness of the incident has deposed about the facts
related to recovery of contraband/charas from the Toyota Pick- up single cabin driven by the
accused. H is statement is fully in consonance with the fact and contents of the F.I.R. i.e. the
appellant was arrested at the spot and recovery of narcotic substances from the vehicle driven by
the appellant stands established. This witness was put to lengthy cross -examination but nothing
favourable came out nor he was shaken in this respect.
P.W.2 Sepoy Munawar Ali being recovery witness has narrated the facts of the incident
and produced the contraband/charas, which was taken into possession from the vehicle dri ven by
the appellant through recovery memo, which was acknowledged by this witness while recording
his statement before the Court. During cross -examination, this witness was also affirmed on his
stance.
P.W.3 Naib Subedar Noor Khan conducted the investi gation and during investigation has
taken steps necessary for the completion of challan. He also produced FSL report Exh.P/3- J,
which further affirmed that the contraband recovered from the Toyota Pick- up driven by the
appellant, is "charas" baked (Cannabi noids). It is on record that 500 grams samples extracted
from the total recovered contraband/charas, have been transmitted to FSL and on its examination
a positive report brought on record, which is an important/supportive document in favour of
prosecution and a corroborative piece of evidence against the appellant.
7. So far the authorities relied upon by the learned counsel for the appellant are concerned,
the facts of the case reported in 1999 SCMR 697 are different and distinguishable from the
instant case. In the case supra, the motive which formed basis of occurrence does not stand
proved nor it was suggested to accused in his statement under section 342, Cr.P.C. Likewise the
case reported in 2010 SCMR 1009 relied upon by the learned counsel for the appellant, is also
not attracted in the present case, as the facts of the above cited case are that the court below has
relied upon the suggestion of the defence to the witnesses in the cross -examination for convicting
him by using the evidence available o n record, but said portion of cross -examination was not put
to accused in his statement under section 342, Cr.P.C. With that background in the aforesaid
case, it was held that if any piece of evidence is not put to accused in his statement under section
342, Cr.P.C. the same cannot be used against him.
8. Whereas, in the present case, it is quite apparent that the appellant was charged under
section 9(c) of the Act, 1997 for the recovery of contraband/charas from the rear body of Toyota
Pick-up driven by the appellant. To substantiate the charge, the prosecution produced three'
witnesses P.W.1 produced Murasila Exh.P/1- A, which indicates the factual aspect of the
recovery of contraband/charas and on the basis of said Murasila, F.I.R. Exh.P/3- E was produced
by P.W.3. The recovery memo of the recovered charas weighing 306 kilograms was taken into
possession through recovery memo Exh.P/2- C and sealed parcels were produced before the court
as Art:P/2 -1 to Art:P/369. Single cabin Pick- up was taken into possession through memo
Exh.P/2- D and produced before the court as Art:P/370. It is also on record that during
investigation, site sketch Exh.P/3- G was prepared and in respect of above contraband/charas, the
chemical analysis report Exh.P/3 -J as well as site sketch Exh.P/3- G were produced through
evidence by the prosecution. All these material particulars were specifically put to appellant
during his statement under section 342, Cr.P.C. The Hon'ble Supreme Court in the case titled
(S.A.K. Rehmani v. The State) repor ted in 2005 SCMR page 364, held as under: --
"----S. 342--- National Accountability Ordinance (XVIII of 1999), Ss.9 & 16---
Interpretation, object and scope of S.342, Cr.P.C.---Power to examine the accused ---Non -
compliance of S.342, Cr.P.C.--- Impact --- Procedural defects and irregularities shall not demolish
the prosecution case nor vitiate the trial---Accused, in the present case had been confronted with
the entire relevant incriminating material brought against him by the prosecution and no proof of
prejudice could be furnished nor it could be pointed out that miscarriage of justice had been
done."
Therefore, the contentions of learned counsel for the appellant in this respect are contrary
to record and have got no force. Whereas, the contentions of appellant's counsel that the F.I.R.
has been lodged after delay of seven (7) hours. It is admitted position that the A.N.F. authorities,
Dalbandin apprehended the appellant along with contraband/charas on 5th May, 2011 at about 3 -
00 a.m. from Sendak Road near Taftan and due to odd hours of night, it was not possible to
proceed towards A.N.F., Dalbandin, therefore, the F.I.R. was lodged at 8 -00 a.m. on 5th May,
2011. It is quite obvious that time of few hours elapsed due to practical difficulties, even
other wise it is settled principle of law that mere delay in lodging the F.I.R. is not fatal nor due to
such delay prosecution has derived any undue advantage as held by the Hon'ble Supreme Court
in its judgment reported in 2011 SCMR 872.
9. The contentions of appellant's counsel in respect of contradiction, variation in the
statements of prosecution witnesses are concerned, we find that the statements of prosecution
witnesses are worthy of credence and there is no occasion to disbelieve them. It is settled
principle that variation in the statement of witnesses, which are neither material nor serious
enough to affect the case of prosecution are of no avail. It is also settled principle that the
statements of the witnesses had to be read as a whole and the court should not pick up the
sentence in isolation from the entire statement ignoring its proper course, as held in the judgment
reported in 2013 SCMR 280.
The witnesses produced by the appellant are also not helpful as no substance came on
record to make den t in the prosecution case.
10. It is established on record that the learned trial Court had rightly rejected defence version
put forth by the appellant, therefore, we are of the considered opinion that the prosecution has
successfully established its cas e through confidence -inspiring evidence.
In view of above discussion, we hold that the impugned judgment passed by the learned
Special Judge, C.N.S. Balochistan Quetta is well -founded, as such needs no interference by this
Court. Consequently, the convi ction and sentence of the appellant is maintained and the present
appeal being devoid of force is hereby dismissed.
MH/91/Bal. 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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