2023 P Cr. L J 1250
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ
SHAHZAD KHAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 15 of 2022, decided on 30th August, 2022.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 29--- Criminal Procedure Code (V of 1898), S. 161---Transportation of
narcotics ---Appreciation of evidence ---Benefit of doubt ---Contradictory statements ---Safe
custody---Delay in recording statement ---Withholding best evidence ---Scope ---Accused
persons were alleged to have been apprehended while transporting 170 kilograms of charas --
-Investigating Officer had neither visited the place of recovery nor prepared sealed parcels ---
Statement of the In -charge of Malkhana was recorded with an unexplained delay of 21 days --
-Prosecution had miserably failed to establish the safe custody of the recovered charas ---
Murasila/Fard -e-Bayan had not attributed the role of driving of the car to any one of the
accused ---Since the role of driving was not attributed to any person, the question of
conscious possession of the recovered charas within the meaning of S. 29 of the Control of
Narcotic Substances Act, 1997 did not arise at all ---Prosecution had also failed to inquire
about the ownership of the car from which the charas was allegedly recovered ---Chemical
Examiner's report mentioned the recovered substance as "Hashish Garda," which is a raw form of cannabis resin and could not be used as a narcotic drug, whereas baked charas was used for smoking---Assistant Commissioner allegedly present during the recovery process was not cited as a witness ---Prosecution had conducted the entire investigation in an
unprofessional manner and had failed to substantiate the accusation against the accused to connect them with the commission of the alleged offence ---Appeal was allowed, in
circumstances.
The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR
2039 and Muhammad Afzal and 2 others v. The State 2012 MLD 220 rel.
Kamran Murtaza and Ahsan Rafiq Rana for Appellants.
Jameel Akhtar Gajani, Additional Prosecutor General for the State.
Date of hearing: 26th August, 2022.
JUDGMENT
GUL HASSAN TAREEN, J. ---Through the instant criminal appeal preferred under
section 48, the Control of Narcotic Substances Act, 1997, ("CNSA, 1997), the appellants
Shahzad Khan and Muhammad Ali have assailed the judgment dated 05th January, 2022 ("impugned judgment"), passed by the learned Special Judge, CNSA, Sibi ("trial Court"), whereby appellants involved in case FIR No. 04/2021, dated 16th March, 2021 under section
9(c), CNSA, 1997, P.S. Bakhtiar Abad Domki were convicted under section 9(c), CNSA,
1997 and sentenced them to suffer life imprisonment (R.I.) with fine of Rs. 200,000/ - each,
in default to pay fine, to suffer six months simple imprisonment (S.I.) each. The benefit of
section 382- B, Criminal Procedure Code, 1898 ("Cr.P.C") was extended to the appellants.
2. Learned counsel for the appellant No. 1 Mr. Kamran Murtaza and Mr. Ahsan Rafiq
Rana for the appellant No. 2 state that the prosecution has failed to prove recovery of 170 kilograms Charas from the appellants for, there are material contradictions in the statements of complainant PW -1 and the PW -3 on the point of safe custody; that PW -1 was re- examined
to establish safe transmission of the recovered contraband, however, to such extent, the Investigating Officer had not recorded the 161, Cr.P.C. statement of PW -1; that the 161,
Cr.P.C. statement of PW -3 was recorded with an unexplained delay; that the impugned
judgment is result of the non- reading of the referred material contradictions. Lastly prayed
for setting aside of the impugned judgment and acquittal of the appellants.
3. Conversely, Mr. Jameel Akhtar Gajani, Additional Prosecutor General states that the
prosecution has proved the recovery of 170 kilogram Charas from the conscious possession of the appellants, the safe custody of the recovered Charas and latter, the safe transmission, through unimpeachable evidence. He adds that both the eye -witnesses (PW -1 and PW -3)
have stood the test of cross -examination and no discrepancy could be found in their
testimonies. The criminal appeal should be dismissed.
4. We have heard both sides and gone through the record and the impugned judgment.
5. Perusal of record reveals, that on 16th March, 2021, at 2:30 p.m., on spy information,
regarding transportation of contraband, the complainant along with levies sepoys were checking the vehicles under the superintendence of Assistant Commissioner Lehri at Shaheed Abdul Wahab Naka. A car was signaled to stop, however, it was not stopped and the appellants, tried to escape. After a hot chase, they were intercepted and recovered 170
kilograms of cannabis resin [Pukhta Charas ] from the seat and rare cavity of the car.
The complainant in his examination- in-chief stated that he had handed over the recovered
Charas, car and the custody of appellants to the Investigating Officer. While, contrarily, the
PW-3 Mahmood Akbar had stated that the complainant had handed over the parcels of 170
kilogram recovered Charas to him in the Levies Station Bakhtiar Abad because he was In-
charge of the Mall Khana . The Investigating Officer PW -4 Mohain Khan had stated as
under:
During his cross -examination, the Investigating Officer stated:
6. In order to prove safe custody and transmission of the recovered Charas, prosecution
has produced the In- charge of Mall Khana as PW -3. The PW -3, during his cross -
examination stated as under:
PW-1 stated that he had handed over the recovered Charas to the Investigating
Officer, whereas the PW- 2, witness of seizure memo stated as under:
The statement reflects that Murasila/Fard -e-Bayan ( ) was drafted after making of
the four parcels. In his cross -examination, the PW -1 had stated:
The conclusion is that, the Investigating Officer had neither visited the place of
recovery nor prepared sealed parcels whereas statement of PW- 3 was recorded with an un -
explained delay of 21 days.
The PW- 1 was re -examined on an application made by the prosecution under section
540, Cr.P.C. He in his statement had stated that on 19th March, 2021, the recovered Charas
was handed over to him for chemical analysis, however, the prosecution evidence is silent that since 16th March, 2021 till 19th March, 2021, the recovered Charas was in whose custody. The PW -1 had not stated such facts in his former court's statement, which he
deposed in his re -examination.
The prosecution has miserably failed to establish safe custody of the recovered
Charas. In the case of The State through Regional Director ANF v. Imam Bakhsh and others, published in 2018 SCMR 2039, paragraph 9, the Hon'ble Supreme Court has held that:
"9. ----- The chain of custody begins with the recovery of the seized drug by the
Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable.
7. Beside all above mentioned facts, the Fard- e-Bayan (Ex: P/1 -A) does not attribute
role of driving of the car to any one of the appellants, whereas the PW -1 had made an
improvement in his examination -in-chief by saying that the car was being driven by the
appellant No. 1. The improvement was duly confronted as under:
Since the role of driving was not attributed to any one, therefore, the question of
conscious possession of the recovered Charas, within the meaning of section 29, CNSA, 1997 does not arise at all. The prosecution had failed to inquire about the ownership of the car from which the Charas was allegedly recovered. Hence, liability of conscious possession cannot be placed upon the shoulder of either of the appellant.
8. Yet, this case has another aspect too. The story of prosecution is that 170 kilograms
baked Charas
was recovered from the appellants. The chemical analyst reports Ex:
P/4-C to Ex: P/4- F, mention the recovered substance as "Hashish Garda". The baked Charas
and Hashish Garda are two distinct substances for, "Hashish Garda" is a raw
form of cannabis resin and cannot be used as a narcotic drug whereas baked Charas is
used to be smoked. In the case of Muhammad Afzal and 2 others v. The State, published in
2012 MLD 220 [Peshawar], in paragraph 7 it was held:
"7. The alleged recovered "Garda charas" was not narcotic in its entirety and the chemical examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry."
The PW- 2 in his cross -examination stated as under:
The prosecution alleged that the Assistant Commissioner was present along with them
during the recovery process, however, he was not cited as a witness.
9. All the above discussed facts, have suggested an irresistible conclusion, that the
prosecution has conducted the entire investigation in an unprofessional manner. The prosecution has badly failed to substantiate the accusation against the appellants to connect them with the commission of the alleged offence. The impugned judgment suffers from misreading and non- reading of evidence and is result of misinterpretation of law.
10. We are constrained to hold that the prosecution has failed to prove its case against the
appellants beyond reasonable shadow of doubt. Resultantly, we allow the instant appeal by setting aside the impugned judgment dated 05th January, 2022, passed by Special Judge, Control of Narcotic Substances Act, 1997, Sibi. The appellants Shahzad Khan son of Wali Muhammad and Muhammad Ali son of Inayat Ali are acquitted of the Charge under section 9(c), CNSA, 1997, FIR No. 04/2021, Levies Station Bakhtiar Abad, Domki, District Sibi. The appellants are in custody, should be released forthwith, if not required in any other case.
Above are the reasons of our short order dated 26th August, 2022, which reads:
"For the reasons to be recorded later on, the appeal is allowed. The impugned judgment dated 05th January, 2022 passed by Special Judge, Control of Narcotic Substances Act, 1997, Sibi is set aside and the appellants viz. Shahzad Khan son of Wali Muhammad and Muhammad Ali son of Inayat Ali are acquitted of the charge under section 9(c) of CNSA, 1997, arising out of FIR No. 04/2021, Levies Station Bakhtiar Abad. The appellants are in custody, should be released forthwith, if not required in any other case."
SA/174/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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