2017 Y L R 878
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
WAQAS ALI ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.261 of 2016, decided on 28th November, 2016.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S.9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2) ---
Seizure of narcotics ---Chemical analysis ---Appreciation of evidence ---Benefit of doubt ---Delay
in sending samples of contraband for analysis ---Validity ---Recor d showed that alleged
contraband was sent to Forensic Science Laboratory for analysis after lapse of one month and
twenty four days from the date of its recovery ---Investigating Officer ought to have sent the
samples for analysis within 72 hours to the For ensic Science Laboratory as required by R.4(2)
Control of Narcotic Substances (Government Analysts) Rules, 2001---No explanation was
available to show that during the intervening period, whether the samples were kept in safe
custody and that the same was n ot manipulated or replaced/ changed ---Delay of one month in
sending the sample for examination would cast serious doubt about the prosecution case, benefit
of which would resolve in favour of accused ---Appeal was allowed and conviction and sentences
record ed by Trial Court against accused persons were set -aside in circumstances.
(b) Sentence ---
----Principle ---Where harsher sentence was involved, stricter proof was required to substantiate
the charge.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss.9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 &
6---Possession of narcotic substance ---Appreciation of evidence ---Chemical Examiner Report ---
Proof ---Record showed that Report of Chemical Examiner bore only one signature of the
Analyst ---Control of Narcotic Substances (Government Analysts) Rules, 2001 prescribed Form -
II, which stipulated the signatures of two authorized officers of the Laboratory ---Report was
silent about the necessary protocol, the test applie d and the result ---Neither any protocol was
mentioned in the Report nor any test was referred to on the basis whereof the Chemical Expert
had concluded that the samples sent for examination contained "raw charas" ---Said Report did
not mention the name of police officer, who had taken the contraband to the office of the
Chemical Examiner ---Admittedly, no police officer had been produced in court to depose about
safe custody of the samples entrusted to him for being deposited in the office of Chemical
Examine r---Such report, which suffered from legal flaws could not be considered as conclusive
proof and was not to be considered as admissible in evidence ---Non -conclusive and non-
speaking laboratory report, which was not compiled according to mandate of law and rules
framed thereunder, could not be relied for conviction---Accused was acquitted, in circumstances
by setting aside conviction and sentence recorded by Trial Court.
Ikramullah v. State 2015 SCMR 1002 rel.
(d) Administration of justice ---
----Particula r procedure for doing any act prescribed by law; if not complied with, that would
amount to violation of law.
(e) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Allegation against acc used was
that 275 packets of baked charas, each packet contained 1 -kg, total 275 -kg was recovered from
the vehicle of accused ---Record showed that accused along with vehicle were brought to police
station, where the recovery proceedings were carried out ---Police had failed to carry out the
recovery proceedings at the spot ---Complainant had failed to tender any plausible explanation as
to why the alleged contraband was not sealed at the spot ---Non-sealing of samples soon after its
recovery created serious do ubt in the prosecution case ---No implicit reliance could be placed on
Chemical Examiner's report as the said report had lost its evidentiary value ---Police had not
separated samples for analysis either at the spot or even in the police station ---Entire con traband
was sent to Forensic Science Laboratory for analysis only to fill -up such lacuna ---Admittedly
conduct of police indicated their being in league with the accused party showing their negligence
and incompetency ---Accused was acquitted, in circumstanc es by setting aside conviction and
sentence recorded by Trial Court.
Khan Bacha v. The State PLD 2006 Kar. 698 rel.
(f) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Recovery of narcotic substance---Appreciation of evidence ---Narcotic in different
packets ---Chemical examination ---Procedure ---Charas in 275 packets contained one kilogram in
each packet was allegedly recovered from the vehicle of accused ---Police had transmitted seven
parcels of contraband, out of which six parcels contai ned forty packets, while one parcel
contained thirty five packets and each packet in the parcels weighed 1 -kg---Samples were not
drawn from each packet ---Non -drawing of samples from each packet separately for chemical
analysis clearly indicated the neglige nce of the Chemical Examiner, which was not in any
manner advantageous for the prosecution case.
Ameer Zeb v. The State PLD 2012 SC 380 rel.
(g) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Recovery of narcotic substance ---Appreciati on of evidence ---Narcotic substance in
different packets ---Vehicle used in trafficking the narcotics ---Prosecution failed to prove that
accused was the owner of the vehicle from which alleged charas was recovered ---Record showed
that someone else was owner of the vehicle ---Investigating Officer had failed to investigate the
actual owner of the vehicle in order to substantiate the allegation that contraband was being
smuggled by the accused or was being transported at the behest of the owner of the vehicle o r
that the vehicle was disposed of by its owner ---Mere presence of the accused in the vehicle was
not enough to hold him responsible for the recovered contraband as the recovery of contraband
was not effected on the pointation of the accused ---Prosecution had failed to prove the conscious
possession of knowledge of the accused about the contraband concealed in the secret cavities of
the vehicle---Accused was acquitted in circumstances by setting aside conviction and sentence
recorded by Trial Court.
Muham mad Shabir Rajpoot for Appellant.
Abdul Latif Kakar, Additional P.G. for the State.
Date of hearing: 22nd November, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.261 of
2016 filed on behalf of appellant Waqas Ali son of Naseer Abbas, against the judgment dated
18th June 2016 (hereinafter referred as, "the impugned judgment") passed by the learned Special
Judge (CNS) Quetta (hereinafter referred as, "the trial Court"), whereby the appellant was
convicted under section 9(c) of CNS Act 1997 and sentenced to suffer Life Imprisonment with
fine of Rs.200,000/ - (Rupees Two Lac) or in default thereof to further suffer S.I. for one year,
with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 24th December 20 14 the complainant Athar Rasheed,
IP/SHO lodged FIR No.396 of 2014 at Police Station Airport Road Quetta under section 9(c) of
CNS Act, 1997, stating therein that on the aforesaid date, pursuant to spy information regarding,
transportation of narcotics, he along with other police officials started checking at Quetta
Chaman Road. At about 4.00 p.m. a double door Vego bearing Registration No.KR -4849 came
from Kuchlak side. On the pointation of informer said vehicle was got stopped. The person
sitting on the d riving seat disclosed his name as Waqas Ali, while the name of lady sitting in the
front seat was known as Sehrish Gul Farin. Hence, on suspicion the accused along with the
vehicle were brought to Police Station and the search of vehicle was resulted into recovery of
275 packets of baked Charas from the secret cavities made in the body under cover of plastic,
floor and sides of vehicle. On weighing each packet contained 1- Kg total 275 Kgs and the same
was sealed in parcels Nos.1 to 7.
3. In pursuance of the above FIR, investigation was conducted by PW -4, Ghulam Ali,
S.I./I.O., who during investigation took into possession the recovered contraband along with
vehicle as well as registration book of the vehicle; wrote to CPLC for its verification and receipt
the verification of vehicle; recorded the statements of witnesses under section 161, Cr.P.C.; sent
the samples for analysis to FSL and on completion of investigation handed over the case file to
PW-5 for preparing the Challan PW -5/2nd IO; receipt the FSL report and submitted the same
through challan in the trial Court.
4. At the trial the prosecution produced five witnesses, whereafter the appellant and
acquitted accused were examined under section 342, Cr.P.C. The appellant also recorded his
statement on oat h under section 340(2), Cr.P.C. and produced two witnesses in his defence. On
conclusion of trial, the appellant was found guilty under section 9(c) of the Act, 1997, and was
convicted and sentenced as mentioned above, while accused Sehrish was acquitted of the charge.
Whereafter, instant appeal has been filed.
5. Learned counsel for the appellant contended that the prosecution has miserably been
failed to substantiate the charge against the appellant; that the analysis report Ex.P/5 -A was
required to be dr awn in accordance with law, but this was not done so in the case in hand,
therefore, the conviction based on such expert report cannot be sustained; that the alleged
recovery of contraband from the exclusive possession of the appellant is in conflict with section
103, Cr.P.C.; that no recovery proceedings were carried out at the spot nor the samples for
analysis were drawn by the Investigating Officer and in order to fill -up such lacuna the entire
recovered contraband were sent to ESL after lapse of one month and 24- days without any
explanation; that the prosecution witnesses were not consistent in their deposition and
contradicted each other on material points; that the vehicle in question from which the alleged
recovery was effected was not registered in t he name of the appellant; that on the same set of
evidence the co -accused was acquitted of the charge, but to the contrary the appellant was
convicted and sentenced by the trial Court; that the defence plea so taken and proved by the
appellant has not been appreciated in its true perspective.
6. Learned Additional P.G. while supporting the impugned judgment stated that the
prosecution through consistent and confidence inspiring evidence has succeeded in proving the
charge against the appellant and the appel lant has failed to rebut his false implication due to any
ill-will or grudge on the part of police, when otherwise himself the appellant was remained as
police official.
7. Heard the learned counsel for parties and perused the record with their able assist ance.
According to the case of prosecution, the police party on receipt of spy information with regard
to transportation of huge quantity of contraband, started checking of the vehicles at Quetta -
Chaman Road, when at about 4.00 p.m. a double door vego bear ing registration No.KR -4849
was intercepted and on suspicion was brought to police station, where the search of the vehicle
was resulted into recovery of alleged contraband. The recovered contraband was analyzed in FSL
and analysis report Ex.P/5- A was issu ed. For facilitation the same is reproduced herein below: --
FORENSIC SCIENCE LABORATORY
POLICE CRIME BRANCH, BALOCH1STAN QUETTA
EXAMINATION REPORT FORM
____________________________
Lab No.140/FSL Date of analysis: 17 -02-2015
Subject: - SUSPECTED CHARAS DETEC -TION
RECEIVED ON 16 -02-2015 FROM THE SUPERINTENDENT OF POLICE
INVESTIGATION SADDAR CIRCLE CCP QUETTA BY HAND OF POLICE
OFFICER IN CASE FIR NO.396/2014/S 9/C CNSA OF POLICE STATION
AIRPORT QUETTA.
Received seven parcels of suspected material having t he following particulars: -
S.No.
of
Parcel Packets
(double -
strip)
contained
in parcel Weight
in Kg Configuration of suspected material
1. 40
packets 40 Kgs Semi -solid form of dark green in colour
2. 40
packets 40 Kgs Semi -solid form of dark green in colour
3. 40
packets 40 Kgs Semi -solid form of dark green in colour
4. 40
packets 40 Kgs Semi -solid form of dark green in colour
5. 40
packets 40 Kgs Semi -solid form of dark green in colour
6. 40
packets 40 Kgs Semi -solid form of dark green in colour
7. 35
packets 35 Kgs Semi -solid form of dark green in colour
Aggregate material = 275 Kgs.
CHEMICAL EXAMINATION: -
Chemical examination in respect to the aforementioned seven parcels suspected material
were carried out by applying Duquenous reagent test, during which, four grams material
of all parcels will be returned to the concerned Police Station duly sealed.
OPINION:
Chemical examination in respect to the aforementioned parcels material were conducted
and consequently observed that all seven pa rcels material contained "CHARAS -Baked
Contrabinoids.
Sd/- (SYED ABDUL JABBAR)
Deputy Superintendent of Police
FSL/Crimes Branch, Balochistan, Quetta.
Chemical Expert, (Notified)
Federal Government Analyst Notified.
No.______140/FSL/CB.
Dated Quetta, th e 23/02/2015."
It is evident from perusal of analysis report Ex.P/5- A that the samples were received by
the FSL on 16th February, 2015 after lapse of one month and 24- days from the date of its
recovery. The samples ought to have been sent for analysis to the Chemical Examiner within 72
hours of the seizure as required by Rule 4(2) of the Control of Narcotic Substances (Government
Analysts) Rules, 2001, but perusal of Examination Report Ex.P/5- A reveals that the some was
received after one month and 24 -days. There is absolutely no explanation on record showing that
during the intervening period where the samples were kept and that either the said samples were
in safe custody or that the same was manipulated or replaced/changed. We are also conscious of
the f act that mere delay of few days in sending the samples for analysis would not cast serious
doubt upon the prosecution case, but the delay so occasioned in the case in hand is expanded on
one month and 24- days, hence neither undue favour can be extended to the prosecution nor the
delay so occasioned can be condoned or is taken lightly. The prosecution must be vigilant
enough to substantiate its case against the appellant beyond any shadow of doubt and the Court
while deciding such like cases has to observe m uch care and caution for the reason that harsher
sentence is involved in the matter and according to latest principles of Hon'ble Supreme Court
that where harsher sentence is involved the stricter proof is required to substantiate the charge,
which is lack ing in the case in hand.
8. The minute perusal of Chemical Examiner Report Ex.P/5 -A would further establish the
fact that the above said report bears only one signature of the Federal Government Analyst,
whereas the Rules, 2001 prescribes Form -II, which st ipulates the signatures of two, authorized
officers of the Laboratory. The report is silent about the necessary protocols, the test applied and
the result. Neither any protocol mentioned in the report nor any test was referred to on the basis
whereof the chemical expert has concluded that the samples sent for examination contained raw
Charas. Similarly, the report does not contain the signatures of two authorized officer as well as
the name of police officer, who had taken the contraband to the office of the Chemical examiner
and admittedly no such police officer had been produced in the Court to depose about safe
custody of the samples entrusted to him for being deposited in the office of the Chemical
Examiner. Furthermore, the law has provided scope for pe rson throwing challenge to the expert's
report to rebut the same and in this regard reference has been made to subsection (2) of section
36 of the Act. It is seriously observed by us in numerous cases the expert report being made in
sheer violation of pres cribed law without observing proper protocol and codal formalities, which
either reflect gross negligence at the part of prosecuting agency, resulted acquittal of the accused
persons or deliberately and intentionally violating the rules being in league wit h the culprits.
9. According to settled principles of law the burden on prosecution to prove its case cannot
be shifted to the accused in artificial manner when the law contemplates and provides a
procedure for doing any act. When such procedure is not com plied with, it amounts to violate the
law. The signatures of two authorized officers on the chemical analyst report are mandatory
under the Rules 2001 and it is also necessary that the report shall contain the necessary protocols
and procedure/tests applie d for in reaching the conclusion that the samples received by the
laboratory are narcotic drug or psychotropic substance. The report which is suffering from legal
flaws cannot be considered as conclusive proof and would not be termed or considered as
admis sible in evidence. Thus, the non- conclusive and non- speaking laboratory report, which was
not compiled according to mandate of law and rules framed thereunder, cannot be relied for
sustaining the conviction.
10. Perusal of the chemical analysis report (Ex. P/5-A) reveals that sealed parcels containing
charas were received on 16th February 2015 by the hand of a Police Officer whose name has not
been mentioned. Perusal of chemical analysis report reveals that it does not mention the basis
upon which the chemic al expert concluded that the samples were containing "Charas".
According to Rules 5 and 6 of the Rules, a complete mechanism has to be adopted by the
chemical examiner on receiving the samples and a report is then to be submitted by him referring
to the necessary protocols and mentioning the tests applied and their results.
Section 36 of the Act requires a Government Analyst to whom a sample of the recovered
substance is sent for examination to deliver the person submitting the sample a signed report in
quadruplicate in the prescribed form II as provided under Rule 6 of the Rules and if the report
prepared by him has not been prepared in the prescribed manner, then it may not qualify to be a
report in the context of section 36 of the Act so as to be treate d a "conclusive proof' of recovered
narcotic substance from an accused person. Reliance in this regard is placed on the case of
Ikramullah v. State 2015 SCMR 1002. Relevant relevant portion is reproduced herein below: --
"... We have particularly noticed that the report submitted by the Chemical Examiner
(Exhibit -RW2/5) completely failed to mention the basis upon which the Chemical
Examiner had come to a conclusion that the samples sent to him for examination
contained charas. According to Rules 5 and 6 of the Control of Narcotic Substances
(Government Analysts) Rules, 2001 a complete mechanism is to be adopted by the
Chemical Examiner upon receipt of samples and a report is then to be submitted by him
referring to the necessary protocols and mentioning the tests applied and their results but
in the case in hand we note that no protocol whatsoever was mentioned in the report
submitted by the Chemical Examiner and no test was referred to on the basis of which the
Chemical Examiner had concluded that the sampl es sent to him for examination
contained charas. In the context of the present case Rule 6 is of paramount importance
and the same is reproduced below:
"6. Report of result of test or analysis. After test or analysis the result thereof together
with full p rotocols of the test applied, shall be signed in quadruplicate and supplied
forthwith to the sender as specified in Form -II"
A bare look at the report submitted by the Chemical Examiner in the present case shows
that the entire page which was to refer to t he relevant protocols and tests was not only
substantially kept blank but the same had also been scored off by crossing it from top to
bottom. This surely was a complete failure of compliance of the relevant rule and such
failure reacted against reliabilit y of the report produced by the prosecution before the
learned trial Court. Section 36 of the Control of Narcotic Substances Act, 1997 requires a
Government Analyst to whom a sample of the recovered substance is sent for
examination to deliver to the person submitting the sample a signed report in
quadruplicate in "the prescribed form" and thus, if the report prepared by him is not
prepared in the prescribed manner then it may not qualify to be called a report in the
context of section 36 of the Control of Narcotic Substances Act, 1997 so as to be treated
as a "conclusive" proof of recovery of narcotic substance from an accused person.
5. In the case in hand not only the report submitted by the Chemical Examiner was
legally laconic but safe custody of the re covered substance as well as safe transmission of
the separated samples to the office of the Chemical Examiner had also not been
established by the prosecution. It is not disputed that the investigating officer appearing
before the learned trial court had failed even to mention the name of the police official
who had taken the samples to the office of the Chemical Examiner and admittedly no
such police official had been produced before the learned trial Court to depose about safe
custody of the samples entr usted to him for being deposited in the office of the Chemical
Examiner. In this view of the matter the prosecution had not been able to establish that
after the alleged recovery the substance so recovered was either kept in safe custody or
that the sample s taken from the recovered substance had safely been transmitted to the
office of the Chemical Examiner without the same being tampered with or replaced while
in transit."
12. Thus, for the above reasons, it would be unsafe to rely upon the Analysis report Ex.P/5 -A
and to base the conviction of the appellant, hence no implicit reliance could be placed upon the
same, but the trial Court while awarding conviction to the appellant has absolutely failed to
observe and consider all these material aspects of the case, which resulted into miscarriage of
justice.
13. As far as the preparation of seizure memo of recovered contraband and
withdrawal/preparation of samples at the spot is concerned, it is painfully observed that the
police had failed to carry out the recovery proceedings at the spot and even no sample was drawn
for analysis at the spot, rather it transpires from the record that the appellant along with co -
accused the vehicle were brought to Police Station, where the recovery proceedings were carried
out. The complainant has failed to tender any plausible explanation as to why the alleged
contraband was not sealed at the spot and the samples were not drawn at the spot. It is held that
non-sealing of samples soon after its recovery created serious doubt in t he prosecution case and
no implicit reliance can be placed on Chemical Examiner's report. The FSL report has lost its
evidentiary value. Reliance in this regard is placed on the case of Khan Bacha v. The State PLD
2006 Karachi 698. The relevant portion is reproduced below: --
"In the light of what has been discussed above it has not been proved beyond any shadow
of doubt that the property was sealed at the place of the incident, therefore, there is no
guarantee that the property was not tampered with. The subsequent sealing of the
properly elsewhere would not rectify the defect already made during course of
investigation at the initial stage; hence the chemical analyzer's report has lost its
evidentiary value. If the property was subsequently sealed then the prosecution was
required to explain the circumstances for doing so and to further specifically show that
the property was not tampered with or replaced. There is no such explanation furnished
by the prosecution in this case, therefore, non- sealing of the s ample immediately after its
recovery creates serious doubt in the prosecution case, hence no implicit reliance can be
placed on chemical analyzer's report. If the chemical analyzer's report is taken out of the
consideration then there is nothing left with the prosecution to prove that the alleged
property was Charas."
In continuation of above para it is further added that the police had not separated samples
for analysis either at the spot or even in the police station. In other words the prosecution had
failed to draw samples in the instant case at all and in order to fill- up such lacuna the entire
contraband was sent to FSL for analysis. Admittedly, the conduct of the police indicates their
being in league with the accused party or showing their negligenc e and incompetency to conduct
the investigation of such like cases and due to carrying out of investigation of the case by an
incompetent officer is an important element when the acquittal is recorded in prosecution case.
14. The negligence of Chemical Examiner is further evident from the fact that the police had
transmitted seven parcel of contraband, out of which six parcels were containing 40 packets,
while one parcel was containing 35 packets and each packet in all the parcels weighing 1 -Kg.
"the Chemic al Examiner only drawn 4 -grams of contraband from each parcel containing 35/40
packets and it is very difficult to distribute 4 -grams of contraband amongst 35/40 packets, which
indicates that samples were not drawn from each packet, whereas according to th e dictum laid
down by the Hon'ble Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 SC 380),
representative sample from each packet should have been taken and each sample should have
been sealed in a separate parcel for chemical examination. If no sample is taken from any
particular piece or if different samples taken from different pieces are not sent separately for
analysis to Chemical Examiner, then the sample would not be a representative sample and it
would be unsafe to rely on mere words o f the mouth of the prosecution witnesses regarding the
substances of which no sample has been taken separately and sealed separately and tested being
narcotics substance. The relevant portion of above referred judgment is reproduced herein
below: --
"For th e purposes of clarity and removal of confusion it is declared that where any
narcotic substance is allegedly recovered while contained in different packets, wrappers
or containers of any kind or in the shape of separate cakes, slabs or any other individual
and separate physical form it is necessary that a separate sample is to be taken from every
separate packet, wrapper or container and from every separate cake, slab or other form
for chemical analysis and if that is not done then only that quantity of nar cotic substance
is to be considered against the accused persons from which a sample was taken and tested
with a positive result."
15. Non-drawing of samples from each packet separately for chemical analysis clearly
indicates the negligence and non- interest of Chemical Examiner in the prosecution cases. The
Chemical Examiners and the Investigating Officers should be well versed with the latest
pronouncements, guidelines and principles of the higher Courts so that any technical mistake
committed in the earlie r cases may not be repeated again, but it is again painfully noted that one
after another the technical mistakes are being committed by the Officers, which is not in any
manner advantageous for the prosecution cases.
16. It is by now, the need of the time for the high- ups of the Police Department to establish a
separate section in the Police Department under the command of Senior Officers to keep sharp
eyes on the Investigating Officers and Chemical Examiners; to make them answerable in each
case separately , if the acquittal is recorded due to their negligence or fault and in order to unearth
the truth that the lacunas left in the prosecution case was due to their negligence or they were in
league with the accused party and if any Officer is found guilty, ne cessary departmental or
criminal proceedings be initiated against him and if such practice is once commenced, no Officer
will dare to repeat the same, otherwise the fate of the prosecution cases will be the same as in the
case in hand and the Courts will be blamed for acquitting the culprits. Such practices must be
stopped without any delay. Besides, the Police Department may also arrange training courses or
through Circulars to update all the Investigating Officers about the latest pronouncements and
guide lines of the superior Courts so that the investigation of the cases may be carried out in
accordance with law.
17. There is nothing on record to show that the appellant was the owner of the vehicle. The
Investigating Officer has placed on record the letter dated 10th January 2015 Ex.P/4- B, perusal
of which reflects that the appellant is not the owner of the same rather one Muhammad Ali Khan
Kasi son of Malik Bashir Khan Kasi was the owner of the same. The Investigating Officer has
also failed to interrogate the actual owner of the vehicle in order to substantiate either the said
contraband was being smuggled by the appellant or at the behest of the owner of the vehicle or
that the said vehicle was disposed of by its owner. Mere presence of the appellant in t he vehicle
is not enough to hold him responsible for the recovered contraband as the recovery of contraband
was not effected on the pointation of the appellant. The prosecution has failed to prove the
conscious possession or knowledge of the appellant about the contraband concealed in the secret
cavities of the vehicle.
18. The trial Court has also failed to properly appreciate the defence plea of the appellant
with regard to his false implication. According to the appellant on the day of occurrence he had
taken his sister to Yaro Pishin for chanting prayer to a Moulvi of DW -1, but while returning on
the way the taxi had become out of order, hence the appellant along with his sister took lift in the
said vehicle, but while apprehending the appellant along wi th his sister and the actual culprit,
they were brought to police station, from where the real culprit was let free and the appellant
along with his sister was booked in the crime. The plea of the appellant has further been
corroborated by the Taxi Driver, who recorded his statement in line to the statement of appellant
and confirmed his version. The defence plea, when put in juxtaposition with the prosecution
evidence, the defence plea appears to be more plausible and justifiable, but the trial Court has
failed to appreciate the same in its true sense.
19. The reappraisal of evidence on record reveals that the prosecution has failed to bring
home the charge against the appellant beyond any shadow of doubt. The entire case of the
prosecution is defective, doubtful and full of contradictions. The judgment of the trial Court
suffers from mis -appreciation, non- reading and mis -reading of the evidence available on record.
According to the settled principles of law, whenever a doubt is created, the benefit of same has to
be extended to the accused not as a matter of grace but as a matter of right. Despite availability
of sufficient doubt in the prosecution case, the benefit of the same was not extended in favour of
appellant by the trial Court.
For the above reasons, the appeal is accepted. The impugned judgement dated dated 18th
June 2016 passed by the learned Special Judge (CNS) Quetta is set -aside and the appellant
Waqas Ali son of Naseer Abbas, is acquitted of the charge under section 9(c) of CNS Act 1997,
in FI R No.396 of 2014 Police Station Airport Road Quetta. The appellant being in custody is
ordered to be released forthwith, if not required in any other case.
Copy of this judgment be sent to Inspector General of Police Balochistan for information
and compli ance and the compliance report be placed before us for our perusal in Chamber
through the Registrar of this Court.
JK/9/Bal Appeal allowed.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.