2020 P Cr. L J 1442
[Balochistan (Sibi Bench
)]
Before Muhammad Hasham Khan Kakar and Rozi Khan Barrech, JJ
MUHAMMAD WALI ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 49 of 2019, decided on 31st October, 2019.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---
Possession of narcotics ---Delayed FIR ---Despatch of sample for analys is after seventy two
hours of seizure ---Non -production of sample -bearer ---Effect ---Accused was convicted for
having been in possession of 10 kilograms of charas ---Occurrence took place at 10:00 a.m.
but the complainant lodged the report after an unexplaine d delay of six hours ---Safe custody
and transmission of charas could not be proved by the prosecution as report of Forensic
Science Laboratory revealed that the sample parcel was received with a delay of about eleven days and the delay was not explained--- Such exercise was required to be completed within
72 hours as per R. 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001--- Prosecution had failed to examine the officer who had taken the sample to the
Chemical Examiner, so that he coul d have been cross -examined on the point as to in whose
custody the sealed parcel of the samples of charas was lying for about eleven days ---
Prosecution could not prove prompt registration of FIR, safe custody and prompt transmission of representative sampl es to the Government Analyst ---Prosecution had failed
to prove its case against the accused, in circumstances ---Appeal was allowed.
Muhammad Aslam v. The State 2011 SCMR 820; Shamsullah v. The State 2013 MLD
1527 and Mst. Razia Sultana and others v. The State 2019 SCMR 1300 ref.
Ali Hassan Bugti for Appellant.
Jamil Akhtar Gajani, Additional Prosecutor General for the State.
Date of hearing: 25th October, 2019.
ORDER
ROZI KHAN BARRECH, J. ---Vide impugned judgment dated 10.04.2019
(hereinafter "the imp ugned Judgment") passed by learned Special Judge, CNS/Additional
Sessions Judge, Dhadar at Sibi (hereinafter "the trial Court") in Narcotic Case No. 03 of
2019 vide FIR No.01/CH/2019 of Excise Sibi dated 21.02.2019 registered with Excise Police Station Sib i, the appellant namely Muhammad Wali son of Gul Muhammad has been
convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "the Act") and sentenced to suffer RI for ten (10) years with fine of Rs.50,000/ - (Rupees
Fifty Tho usand Only) and in default thereof to further undergo for a period of six months' SI
with benefit of section 382- B, Cr.P.C.
2. Brief facts disclosed from the report of complainant Javed Ahmed, Excise Inspector
(Ex.P/2 -A) are that at 10:00 a.m., when the Excise Police Sibi was usually checking the
crossing vehicles at National Highway, opposite to Bolan Weir Rest House, a mini passenger Wagon No.BML -668 came there from Quetta side, which was stopped for checking. During
course of checking found a person sitt ing on front seat of the Wagon. On inquiry he
disclosed his name as Muhammad Wali (appellant) and when his personal search was conducted, ten (10) blue strips were recovered from a blue school bag, lying in his lap and on opening each strip contained baked Charas weighing one (01) (total 10 Kg) which was taken
into possession through recovery memo and 20 grams from each strip of baked Charas were separated and sealed in Parcel No.1 and rest of the recovered Charas were sealed in Parcel No.2.
3. After formal investigation, challan was submitted before the trial Court and charged
was framed against the appellant under section 9(c) of the Act to which he pleaded not guilty and claimed trial. In order to prove the alleged recovery, the prosecution examined follo wing
witnesses: -
PW-1, Khadim Hussain, who is recovery witness in his presence the alleged Charas
were recovered and the same was taken into possession through recovery memo (Ex.P/1 -A and 1 -C).
PW-2, Javed Ahmed, Excise Inspector, who is complainant of the case, he produced
the report (Ex. P/2 -A).
PW-3 Noor Ahmed, Excise Inspector/Investigation Officer, he produced challan
(Ex.P/3 -A), FSL report (Ex.P/3- B) and incomplete challan (Ex.P/3- C).
4. On completio n of prosecution evidence, the accused was examined under section 342,
Cr.P.C., wherein he professed innocence and denied the allegations levelled against him. The appellant did not record his statement on oath nor led any witness in his defence. On conclu sion of the trial, the trial Court convicted and sentenced the appellant vide impugned
judgment dated 10.04.2019. Hence this appeal.
5. Learned counsel for the appellant contended that the prosecution has failed to prove
charge against the appellant beyond reasonable doubt; that there is delay of about six hours
for registration of FIR and there is also delay about eleven days for sending of the alleged sample to the Chemical Examiner, therefore, tampering with the same cannot be ruled out, finally he praye d for setting aside the impugned judgment and acquittal of the appellant.
6. On the other hand, the learned APG strongly opposed the appeal and defended the
impugned judgment.
7. Arguments advanced by the learned counsel for the appellant as well as learne d APG
have been heard and perused the available record.
8. It has been noticed that the occurrence took place at 10:00 a.m., (day) on 21.02.2019
as the complainant lodged a report (Ex.P/2 -A) at 4:30 p.m., on 21.02.2019 after unexplained
delay of six (06) h ours, this delay raises eyebrows qua veracity of the case and signals
towards consultation, concoction, inducement and procurement on the part of prosecution in
this regard.
9. We have also noticed that it is the case of the prosecution that samples were
transmitted to the office of Forensic Science Laboratory Crimes Branch Balochistan, Quetta,
but safe custody and transmission in this regard could not be proved by the prosecution
because according to FSL report (Ex.P/3 -B) the sample of Charas baked receive d on
04.03.2019 through Malik Salah- ud-Din, Excise official with delay of about eleven days and
such delay has not been explained.
10. As per Rule, 4(2) of the Control of Narcotic Substances (Government Analysts)
Rules, 2001, this exercise was required to be completed within 72 hours of the recovery, and
for this purpose even there is no plausible explanation brought on record by the prosecution
as to why such inordinate delay was caused in the completion of this exercise by the
Investigating Officer. This is fatal to the prosecution case. In this regard, reference can be
made to the case of Muhammad Aslam v. The State reported in 2011 SCMR 820 and Shamsullah v. The State 2013 MLD 1527.
11. The prosecution has also failed to examine the Excise Officer, who had taken the
sample of the Chemical Examiner, so that he could have been cross -examined on the point as
to in whose custody the sealed parcel of the samples of Charas were lying about eleven days which makes the case of prosecution doubtful and any doubt if arises in the links of the chain
of prosecution story, the benefit of the same will go to the accused. In this regard reliance is placed in the case of Mst. Razia Sultana and others v. The State 2019 SCMR 1300.
12. In view of the above, we have reached at the conclusion that the prosecution in the
instant case could not prove prompt registration of the FIR, and safe custody and transmission of the representative samples to Government Analyst also could not be proved. Thus, the prosecution has failed to prove its case against the appellant. In this scenario, there is no need to discuss defence version.
Resultantly, instant appeal is allowed, conviction and sentence recorded against the
appellant through the impugned judgment 10.04.2019 passed in case aris ing out of FIR
No.01/CH/2019 dated 21.02.2019 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Excise Police Station Sibi is hereby set aside. The appellant is acquitted of the charge, he shall be released forthwith, if not required in any other case.
SA/150/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,
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