2017 P Cr. L J 85
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ
ELLA -UD-DIN and another ---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.(s)55 of 2014, decided on 24th July, 2014.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possessing and trafficking of narcotics ---Appreciation of evidence ---Accused was
driving the car in question, while co -accused was sitting next to him on front seat ---On search of
car 82 packets of bak ed charas of one Kg. each, were recovered ---Specimen from each packet
was separated for chemical analysis and a separate parcel of 500 grams was sealed for chemical
analysis ---Accused persons were arrested on the spot with recovered contraband substance ---
Sending the recovered contraband item with delay of beyond the period of 72 hours, would not
vitiate the trial---Contradictions in the statements of prosecution, though were always fatal to the
prosecution case, but a distinction was to be made between minor inconsistencies or variance in
the testimony of witness from the contradictions in the evidence ---Only such statements would
be termed as contradictory which were either destructive of each other or were totally different to
the extent that two versions could not be reconciled---Minor discrepancies in the present case,
were not of such nature ---Alleged contraband was recovered from the secret cavities of the car;
driver could not be absolved from the responsibility, as he being the driver would have
know ledge about the prohibited substance secretly concealed in the car ---Knowledge and the
conscious possession of both accused persons, could not be ruled out in presence of un -
impeachable prosecution evidence ---Co -accused was rightly held responsible for com mitting the
offence, charged against him ---Ocular testimony, recovery of substance, positive Forensic
Science Laboratory report, had fully proved case against accused persons ---Accused persons,
could not establish that they were substituted---Prosecution s uccessfully proved its case against
the accused persons without shadow of doubt, no interference was required by High Court ---
Impugned judgment passed by Special Judge for narcotics, was upheld, and appeal was
dismissed in circumstances.
Abdul Khaliq Sum alani for Appellants.
Abdullah Kurd for the State.
Date of hearing: 5th June, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Criminal Appeal is
directed against the judgment dated 20th February, 2014 ("impugned judgment") passed by the
learned Sessions Judge/Special Judge for Narcotics, Sibi ("trial court"), whereby the appellants
were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 ("the CNS
Act") and sentenced to suffer Rigorous Imprisonment for life with fine of Rs.1,00,000/ - (Rupees
one lac), in default whereof, to further undergo six months' Simple Imprisonment. The benefit of
Section 382- B of the Criminal Procedure Code, 1898 ("Cr.P.C.") was also extended in favour of
the appellants/convicts.
2. The brief facts of the prosecution case are that on 28.6.2014 the FIR No.09 of 2013 was
registered with Saddar Police Station, Sibi under Section 9(c) of the Act, on a murasila
(information) sent by the complainant viz. Nawaz Ali Jattak IP/SHO, wherein he adverted that
on the directions of his superior officer, a blockade was established at Quetta -Sibi road for
general checking, when a white colour Toyota Corolla Car was intercepted and the
appellants/convicts were apprehended on suspicion, the vehicle was thoroughly sear ched,
wherein, 82 packets of baked charas were recovered from secret cavities of the vehicle. The
recovered charas on weighment was found 82 Kilograms, out of which 500 grams were
separated for chemical analysis.
3. The appellants/convicts were arrested an d on completion of formal investigation, the
challan against them was submitted before the learned trial court. On their denial to the charge,
the prosecution produced the following witnesses: --
1. PW-1 Shehzadar Khan, H/C witness of recovery memo.
2. PW-2 Nawaz Ali, IP/SHO Complainant.
3. PW-3 Muhammad Khalid, SIP Investigation Officer.
4. On completion of the prosecution evidence the statement of appellants/ convicts under
section 342, Cr.P.C. were recorded, in which once again they professed their innocence, they
themselves did not enter on oath but produced one witness in their defence. The learned trial
court on completion of trial, passed the conviction under Section 9(c) of the Act and sentenced
them in above stated terms.
5. The learned counsel for the appellants/convicts assailed the impugned judgment on
various grounds. He stated that the alleged contraband items were sent to the Forensic Science
Laboratory (FSL) with delay of about two months, therefore, the mandatory provisions of the
Control of Narcotic Substances Rules, were violated which provide that the contraband items
shall necessarily be dispatched to the FSL/chemical expert within 72 hours of the occurrence.
The learned counsel referred to the statement of witnesses and stated that the g laring
contradictions were noted in the statements of the witnesses. He further contended that the
proceeding in respect of recovery memos and statement of witnesses were completed in police
station. He added that specimen for chemical analyses were not ob tained from each packet of the
alleged recovered contraband substance. He referred to the statement of PW -1 and contended
that the PW -1 has stated that various weighing bars were used for weighment of contraband
substance and further stated that all the 82 packets were weighed with polythene bags and same
were not unwrapped. He referred to the statement of PW -2 and contended that the PW -2 stated
before the court that only one packet was weighed and the rest were presumed to be of the same
weight. He maintained while referring to the Murasila Ex -P/2-A, wherein the date and time of
the occurrence and the date and time of the report are clearly mentioned. Therefore, a serious
doubt was created in the prosecution case, benefit whereof should have been extended i n favour
of the appellants/convicts. He added that the appellants/convicts were sitting at Pehelwan Hotel
on National Highway when they were asked by the police to proceed to the police station and
after three days they came to know that the instant case h ad been lodged against them. He
contended that since no private witness was associated during the recovery proceedings,
therefore, the prosecution case is not free from doubts on basis whereof the appellants were
liable to be acquitted of the charge. He fi nally urged for setting aside of the impugned judgment,
consequent upon the acquittal of the appellants/convicts.
6. Mr. Abdullah Kurd, the learned State counsel has strongly opposed the contention and
contended that the appellants/convicts have been faile d to bring any plausible and reliable
evidence in their defence. He stated that it is not acceptable that the appellants/convicts were
falsely roped towards the commission of offence by foisting huge quantity of contraband
substance and 2D Car against them . He added that defence introduced by the appellants/convicts
was not worthy of credence; therefore, the learned trial court has rightly convicted them. He
finally prayed for dismissal of the appeal.
7. We have heard the learned counsel for the appellants/ convicts the learned State counsel
and have also gone through the record with their assistance. The perusal of record reveals that
the complainant IP/SHO, Saddar Police Station, Sibi was on blockade, when the white colour 2D
Car coming from Quetta was inte rcepted. The appellant Ella- ud-Din was driving the Car while
the appellant Jalal -ud-Din was sitting next to him on front seat, on suspicion, they were alighted
from the Car and on thorough search of the vehicle, 82 packets of backed charas were recovered
from the secret cavities of the Car, on weighment the recovered substance was found 82
Kilograms, specimen from each packet was separated for chemical analysis and a separate parcel
of 500 grams was sealed for chemical analysis. The appellants/convicts were arrested on the spot
along with recovered contraband substance. The appellants/convicts remained under physical
custody of the police and on conclusion of the interrogation/investigation, the challan was
submitted against them. They hopelessly remained si lent and did not controvert their arrest and
the recovery thereof. The appellants/convicts introduced a defence plea when the PW -I was
being cross -examined and it was suggested that they were sitting at Pehelwan hotel, situated at
20 to 30 paces from the place of occurrence. The appellant No.1 claimed to be a truck driver
while the appellant No.2 his cleaner and they were having a meal/lunch at the said hotel when
arrested by the police and dragged in this case.
On conclusion of trial, when the appellants/ convicts were examined under section 342,
Cr.P.C., they once again opted to remain silent about a special plea and did not enter on oath in
their defence. However, both of them produced one defence witness namely Nabi Bakh son of
Khudai Rahim, who reiterat ed the defence story as already introduced by the appellants/convicts.
The defence introduced by the appellants/convicts was disbelieved by the learned trial court and
they were convicted and sentenced vide impugned judgment.
8. The learned counsel for the appellants/convicts at the very out set raised the objections
that the specimen separated from the recovered contraband substance was sent for chemical
analysis after delay of about two months, therefore, a sufficient doubt was created in the
prosecution case. The contention so raised was found without any substance.
The Rules 4 and 5 of the CNS (Government Analysts) Rules, 2001 are related to sending
the contraband items for chemical analysis, and the direction contained therei n is directory but
not mandatory in nature. The Rules 2001 could not control the substantive provisions of the Act,
1997 and to be applied in a such manner that its operation would not frustrate the purpose of the
Act under which the Rules are framed. Fail ure to follow the Rules 2001, would not render the
search, seizure and arrest made under the Act 1997 as illegal, but there is no bar on the I.O. to
send the sample beyond 72 hours of the seizure or from receiving the FSL report after 15 days.
In this rega rd reference is made to Tariq Mehmood v. The State PLD 2009 SC 39. Therefore,
sending the recovered contraband item with delay or beyond the period of 72 hours does not
vitiate the trial. The objection being mis -conceived is overruled.
9. The learned couns el for the appellant has also contended that the contradictions in the
testimonies of prosecution witnesses shall necessarily be resolved in favour of the defence. I am
in agreement with the learned counsel for the appellant/convict to the extent of the pr oposition
that contradictions in the statements of prosecution witnesses are always fatal to the prosecution
case. But irrespective of veracity of the defence version, a distinction is always to be made
between minor inconsistencies or variance in the test imony of witness from the contradiction in
the evidence. Only such statement shall be termed as contradictory, which are either destructive
of each other or they are totally different to the extent that two versions cannot be reconciled.
Such contradiction shall always lead to the benefit of defence, however, the variance of
testimony of witnesses or inconsistencies on the point shall not lead to such conclusion, which
are not material in nature and do not introduce or suggest a totally different version to the
prosecution case. The minor discrepancies in the instant case are not of such nature which could
bring the case within the exception supra. In rendering this view supported by the reported
judgment of Hon'ble Apex Court Sarfaraz alias Sappi v. The Sta te 2000 SCMR 1758. Relevant
portion whereof is reproduced hereunder: --
"In the cross -examination of both the PWs i.e. Ahmed Khan and Sakhawat Hussain their
above version was not shaken at all inasmuch as concerning the incriminating portion of
their testimonies there was no sufficient impeachment. Resultantly, we have to form a
positive opinion that incriminating portion of the evidence is consistent, coherent, trust
worthy as well as natural i.e. free from any exaggeration. However, we may mention here
that if in cross -examination intrinsic value of incriminating evidence of a witness has not
been shaken his statement cannot be discarded for minor contradictions reference may be
made to the case of Mushtaq alias Shaman v. The State PLD 1995 SC 46".
10. We have minutely considered the contentions of the learned counsel. The plea introduced
by the appellants/convicts was not appealable to the prudent mind when without suggesting any
ill-will to the prosecution witnesses, whether, it was possible to foist such a huge quantity of
contraband substance along with Toyota Corolla Car against the appellants/convicts without any
rhyme or reasons. Even, if we assume that the appellants/convicts were sitting at the hotel and
having a meal, why the SHO would take such a drastic step to leave the perpetrators of the crime
and arrest two innocent persons, who were not known to them nor were residents of the vicinity.
The appellants/convicts did not produce any cogent and reliable evidence to establish the said
plea. The def ence itself remained silent about the alleged truck which was being driven by the
appellants and was left unattended at the hotel. The appellants failed to produce the owner of
said truck or any independent evidence to substantiate their stance/plea. It is well settled that
when a distinct and specific plea is taken, it must be substantiated by cogent and reliable
evidence, no effort was made to prove the version of the appellants/convicts.
11. The contraband substance was recovered from the secret cavities of the Car, therefore,
driver cannot be absolved from the responsibility. The contraband items which were being
transported in the vehicle which was driven by the appellant/convict No.1 under his exclusive
control and authority, therefore, it was neither possible nor believable that the appellant/convict
being a driver would have no knowledge about the prohibited substance secretly concealed in the
car. Reference is made to Ghulam Qadir v. The State PLD 2006 SC 61.
12. The co -accused/convict Jalal -ud-Din was also rightly held responsible for committing the
offence charged against him. The "knowledge and the conscious possession" of both the
appellants cannot be ruled out in presence of the un- impeachable prosecution evidence. The
ocular testimony, the recovery of substance, the 2D Corolla Car and the positive FSL report, the
appellants/convicts in rebuttal either made evasive denial or produced one DW, the statement of
DW was rightly disbelieved on basis of logical hypotheses. The appellants/convicts did not
categorically deny the factum of recovery, particularly, when they had not entered on oath in
their defense. Though, the statement on oath is optional in nature and can only be recorded, when
the accused himself wishes so and he cannot be compelled to do so. When the initial burden of
proof is discharged by the prosecution, then in case of special plea, the onus of proof shifts upon
the defence and failure to discharge the same leads to adverse inference against the defence. Both
the appellants were sailin g the same boat as they both relied and pleaded the same defence plea.
They claimed that the original culprits were substituted with them. On one hand the
appellants/convicts admitted the police blockade at the (Quetta -Sibi) National Highway Road,
the reco very of the prohibited substance at the stated time, date and place, as well as, their
presence on the spot but on the other they failed to bring any evidence pertaining to the truck,
which they claimed to have been left at the hotel where they were taking meal/lunch. Since the
owner of the truck was not produced, therefore, this plea was rightly discarded by the learned
trial court. Had the appellants been falsely implicated for transportation of contraband items then
the recovery would have been shown from their left over truck instead of 2.0- D Toyota Corolla
Car.
In view of the above discussion, we are of considered opinion that the prosecution
successfully proved its case beyond shadow of any doubt, no interference is required by this
Court. Therefore, the judgment dated 20th February, 2014 passed by learned Sessions
Judge/Special Judge for Narcotics, Sibi is upheld and consequently, the appeal is dismissed
accordingly.
HBT/57/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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