2022 P Cr. L J 853
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ
AURANGZAIB and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos. (s) 72 and (s) 73 of 2020, decided on 12th February, 2021.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of Narcotics ---Appreciation of evidence ---Prosecution case was that
sixty eight kilograms of baked charas was recovered from the secret cavities of the vehicle
driven by the accus ed, while co -accused was sitting in front seat of the said vehicle---
Prosecution had produced three witnesses to prove the charge against the accused---All the said witnesses were consistent on all material aspects ---No distinct discrepancy was noticed
to spoil the credibility of their testimony ---Said witnesses were subjected to cross -
examination by the defence, but their testimony was not shattered--- Mode and manner of
arrest of accused leading to the recovery of narcotic had been proved--- Prosecution evi dence
was unanimous with regard to the arrest of the accused, place of occurrence, quality of the
recovered charas and to that extent, the evidence of the prosecution was also inspired confidence ---Recovery of narcotic had been effected from the vehicle wh ich was driven by
the accused, hence he had been found responsible for transporting huge quantity of narcotic having prior knowledge of the same in his vehicle ---In the present case, no proof of enmity
with the complainant and the prosecution witnesses had been brought on record, thus, in the
absence thereof, the competence of prosecution witnesses being officials was rightly believed ---Witnesses were not at all questioned about any previous ill -will or enmity with the
accused whereby they could have been f alsely nabbed and charged for the possession of sixty
eight kilograms of charas ---Accused had failed to produce any tangible material to rebut the
trust worthy and confidence inspiring evidence of the prosecution witnesses ---Circumstances
established that the prosecution had successfully proved the guilt of the accused--- Appeal
against conviction was dismissed accordingly.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of Narcotics ---Appreciation of evidence ---Liability of driver of
vehicle containing narcotic ---Scope ---Person who is on driving seat of the vehicle shall be
held responsible for transportation of narcotics.
Kashif Amir v. State PLD 2010 SC 1052 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9 & 25--- Criminal Procedure Code (V of 1898), S. 103--- Mode of making searches
and arrest ---Search to be made in presence of witnesses ---Scope ---Defence objected that no
private witness was joined in recovery proceedings except police officials, which is a
violation of S.103, Cr.P.C.---Application of S. 103, Cr.P.C., had been excluded by S. 25 of the Act, 1997, in narcotic cases.
Zafar v. The State 2008 SCMR 1254 rel.
(d) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Control of Narc otic Substances (Government Analysts) Rules, 2001, R. 4(2) ---
Seizure of Narcotic--- Appreciation of evidence ---Chemical analysis ---Delay in sending
samples of contraband for analysis ---Effect ---Prosecution case was that sixty eight kilograms
charas was reco vered from the secret cavities of the vehicle driven by accused--- Samples
were sent to the Chemical Examiner with delay of six days and were kept at police station---Dispatching of sample beyond 72 hours was not a sine qua non---Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the
Control of Narcotic Substances (Government Analysts) Rules, 2001, did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizur e or recovery of the
contraband--- Provisions in that respect were directory and not mandatory---Nothing was
available on record to establish that the parcels were ever tampered with ---Evidence led by
the prosecution established that when the parcel was received by the said agency same was intact---Even otherwise on the day of recovery the Investigation Officer handed over the
parcel of recovered narcotics to official witness/ASI, who after registering the same in Register No. 19 kept the same in Malkhana in safe custody and handed over the same to
other official witness who deposited the same to Forensic Science Laboratory and obtained the report ---Circumstances established that the prosecution had successfully proved the guilt
of the accused ---Appeal agains t conviction was dismissed accordingly.
(e) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of Narcotics ---Appreciation of evidence ---Benefit of doubt ---
Prosecution case was that sixty eight kilograms of baked charas was recove red from the
secret cavities of the vehicle driven by the accused, while co -accused was sitting in front seat
of the said vehicle ---Record showed that no recovery, whatsoever, had been affected from
co-accused and the alleged contraband was recovered from the secret cavities of the vehicle --
-Prosecution had failed to establish that the co- accused was in the knowledge of the narcotic
or that the same was exposed to him--- Co-accused was a mere passenger and having no link
either with the accused or the vehicl e which was used in the crime--- Prosecution had simply
proved presence of the co- accused in the vehicle--- Mere presence of co -accused in the
vehicle would not involve him in the case ---prosecution had failed to prove its case against
the co -accused ---Appea l against conviction to the extent of co- accused was allowed, in
circumstances.
Qaisarullah v. State 2009 SCMR 579 rel.
Ahsan Rafiq Rana for Appellants.
Jameel Akhter Gajani, A.P.G. for the State.
Date of hearing: 2nd February, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellants Aurangzeb son of Iltaf Hussain in
Criminal Appeal No. (S) 72 of 2020 and Asfand Yar son of Ehsan Ali in Criminal Appeal
No. (S) 73 of 2020 have filed the titled appeals under section 48 of the Control of Narcotic Substance s Act, 1997 (hereinafter "the Act") against the judgment dated 31st August 2020
(hereinafter "the impugned Judgment") passed by the learned Special Judge CNS Sibi ("trial court") in CNS Case No. 08 of 2020, case FIR No. 09 of 2020 registered under section 9(c) of the Act of Police Station Saddar District Sibi whereby the appellants have been convicted under section 9(c) of the Act and sentenced to suffer Rigorous Imprisonment for ten years and six months each with fine of Rs.50,000/ - each and in default whe reof to further undergo
Simple Imprisonment for eight months each with benefit of section 382 -B, Cr.P.C.
2. Brief facts of the case are that on 10.01.2020 the complainant Allah Dinna ASI
registered the aforesaid FIR with the allegation that on the fateful day he along with other
police officials were checking vehicles at Narri Bridge National Highway. Meanwhile, at about 1:00 pm, they stopped a Toyota Corolla car bearing Registration No. V -0433 coming
from Quetta which was driven by the appellant namely Asf and Yar whereas the appellant
Aurangzeb was also sitting on the front seat of the vehicle. Search of the vehicle resulted in to recovery of sixty eight packets of baked charas, each weighing one kilogram and total of sixty eight kilograms from the secret c avities of the vehicle's tank and doors. The recovered
contraband, were taken into possession through recovery memo and sealed in parcels in presence of the witnesses. Hence, the crime report.
3. On completion of investigation, challan of the case was subm itted before the trial
Court, whereby the appellants were charge sheeted to which they did not plead guilty and claimed trial. The prosecution in order to substantiate its case produced and examined four witnesses in all, whereafter the statements of the a ccused were recorded under section 342,
Cr.P.C., wherein they professed their innocence. The appellants neither recorded their statements on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in their defense.
4. The trial court, afte r conclusion of the trial, found the appellants guilty of the charge
and while recording their conviction sentenced them as mentioned above. Hence, the titled appeals.
Since both the appeals are arising out of one and same judgment, therefore the same
are being decided through this common judgment.
5. We have considered the worthy arguments advanced by the learned counsel for the
appellant as well as learned APG and carefully scanned the material available on the record.
6. It has borne out from the record that 68 kilograms of backed Charas were recovered
from the vehicle which was driven by the appellant Asfand Yar and same were taken into
possession through recovery memo and sealed into parcel on the spot.
7. While going through the prosecution evidence, especially the statement of Allah
Dinna ASI (PW -1) who is complainant of the case and seizing officer, Abdul Rahim Head
Constable (PW -2) who is marginal witness of the recovery memos (Ex.P/2- A, to Ex.P/2- D)
and member of the police party. In his presence t he alleged Charas was recovered from the
vehicle which was driven by the accused/appellant Asfand Yar, Ghous Bakhsh ASI (PW -3)
who took the samples from the investigation officer and kept the same in Malkhana after registering the same in Register No. 19 a nd Mehboob Ali SI (PW -4) who conducted the
investigation of the case, it transpired that all the above witnesses are consistent on all material aspects. No distinct discrepancy was noticed to spoil the credibility of their testimony, and they were subjecte d to cross -examination by the learned counsel of the
accused/appellant, but their testimony was not shattered. From the evidence, the mode and manner of arrest of appellant leading to the recovery of narcotic have been proved, the prosecution evidence is u nanimous with regard to the arrest of the accused, place of the
occurrence, quantity of the recovered Charas and to that extent, the evidence of the prosecution is also inspiring confidence. While recovery of narcotics has been effected from the vehicle wh ich was drive by the appellant Asfand Yar, hence the appellant has been found
responsible for transporting huge quantity of narcotics having prior knowledge of the same in his vehicle.
8. It is well- settled principle that a person who is on driving seat of the vehicle, shall be
held responsible for transportation of the narcotics as held by the Hon'ble Supreme Court in the case of Kashif Amir v. State (PLD 2010 SC 1052). The relevant portion is reproduced hereunder: -
"It is well settled principle that a pe rson who is on driving seat of the vehicle, shall be
held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is Incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. State (1998 SCMR 1899), this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle ".
9. Adverting to the contention of the learned counsel for the appellant/accused Asfand
Yar that no private person was joined in recovery proceedings except police officials, which is a violation of section 103, Cr.P.C. There appears no force in the cont ention of learned
counsel as the application of section 103, Cr.P.C., has been excluded by section 25 of the Act, in narcotics cases. In the case of Zafar v. The State reported in (2008 SCMR 1254), the
Hon'ble Supreme Court has held that: -
"Police employe es are competent witnesses like any other independent witness and
their testimony cannot be discarded merely on the ground that they are police
employees".
10. Moreover, the reluctance of the general public to become a witness in such like cases
was a judi cially recognized fact and there was no option left but to consider the statement of
an official witness as no legal bar had been imposed in that regard. In the instant case, no proof of enmity with the complainant and the prosecution witnesses has been br ought on
record, thus; in the absence thereof, the competence of prosecution witnesses being officials was rightly believed. Moreover, the PWs were not at all questioned about any previous ill -
will or enmity with the appellant whereby they could have been falsely nabbed and charged for the possession of 68 kilograms of Charas.
11. The next contention of the learned counsel for the appellant/accused was that the
parcels were sent to the chemical examiner, with delay of six days and it was kept at police station, hence cannot be said that the same was in safe custody. It may be observed that the
alleged recovery was effected on 10.01.2020 at 1:00 p.m. while the samples were received by the chemical examiner on 16.01.2020. Dispatching of sample beyond 72 hours is not a sine qua non. Mere delay in sending the sample to the laboratory is not at all fatal to the prosecution case because Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, do not place any bar on the investigating officer to send the samples beyond 72 hours of seizure or recovery of the contraband. The provisions in this respect are directory and not mandatory. There is nothing on record to establish that the parcels were ever tampered with rather the evidence led by the prosecution established that when the
parcel was received by the said agency, remained intact. Even otherwise on the day of recovery the investigation officer handed over the parcel of recovered narcotics to PW -3
Ghous Bakhsh ASI of Police Station Saddar Sibi, who after registering the same in Register No. 19 kept the same in Malkhana in safe custody and handed over the same to PW -4
Mehboob Ali, ASI who deposited the same to FSL Laboratory on 16.01.2020 and obtained the FSL report. The name of PW -4 als o appeared in the FSL report Ex.P/4- E.
12. The report of FSL (Ex.P/4- E) further provided that after conducting a chemical test
with complete protocol (description thereof are available in FSL report), the same have been found baked Charas.
13. After having analyzed the prosecution evidence, we are of the candid view that
prosecution has ably proved the charge against the accused/appellant Asfand Yar, who was driving the vehicle wherefrom the secrete cavities of the said vehicle, the alleged Charas were recovered and he was responsible for the said recovery. In view of recovery of huge
quantity, we can safely observe that there is no possibility of false implication of the appellant/accused Asfand Yar in the offence entailing stringent punishment, espec ially in
absence of any proven enmity. We have noticed that in rebuttal to overwhelming prosecution evidence, the appellant has failed to produce any tangible material to rebut the trust worthy and confidence inspiring evidence of the prosecution witnesses .
14. We are, thus, of the considered view that prosecution has successfully established the
guilt of the accused/appellant Asfand Yar son of Ehsan Ali and he was rightly convicted by
the learned trial court. The trial court while recording conviction against the appellant Asfand Yar has rightly relied on the case titled as Ameer Zeb v. The State (PLD 2012 SC 380) in respect of representative samples of the entire substance recovered from the vehicle
driven by the appellant Asfand Yar and the reafter awarded punishment to the appellant.
Therefore, the sentence awarded to the appellant duly commensurate with his act. Resultantly
the Criminal Appeal No. (S) 73 of 2020 fails and is dismissed. The conviction and sentence of the appellant Asfand Yar son of Ehsan Ali is, thus, maintained.
15. So far the conviction of the appellant Aurangzeb son of Iltaf Hussain in Criminal
Appeal No. (S) 72 of 2020 is concerned, the prosecution has failed to prove any link of the appellant with that of co- accused Asfa nd Yar. No recovery whatsoever has been effected
from him and the alleged contraband was recovered from the secrete cavities of the vehicle. The prosecution has failed to establish that the appellant was in knowledge of the narcotics or that the same was e xposed to him. The appellant was a mere passenger and having no link
either with the accused/appellant Asfand Yar or the vehicle which was used in the crime. The prosecution has simply proved presence of the appellant Aurangzeb in the vehicle. Mere
presence of the accused/appellant in the vehicle would not involve him in the case. The
prosecution has failed to prove its case against the accused/appellant Aurangzeb. In a similar situation, in case of Qaisarullah v. State (2009 SCMR 579), the august Supreme C ourt of
Pakistan while examining a similar question observed as under: --
"The prosecution failed to prove through convincing evidence that Abdul Wali had exclusive knowledge of the concealment of narcotics in a car, which neither belonged nor was being dr iven by him."
Since the prosecution has failed to bring home the charge against the
accused/appellant Aurangzeb son of Iltaf Hussain under section 9(c) of the CNS Act, therefore, the trial court's judgment to the extent of his conviction under section 9(c ) of the
CNS Act is hereby set aside. Consequently, the appellant Aurangzeb son of Iltaf Hussain is acquitted of the charge under section 9(c) of the CNS Act in FIR No. 09 of 2020 of Police Station Saddar Sibi. He shall be released forthwith if not require d in any other case.
JK/55/Bal. Order accordingly.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.