2023 P Cr. L J 1530
[Balochistan]
Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ
MUHAMMAD NAWAZ ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 21 of 2022, decided on 1st August, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Prosecution case was that
32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were
recovered from the possession of the accused while he was travelling in a passenger bus ---
Perusal of record revealed that prosecution in support of its case produced as many as five witnesses, out of whom, two were the star/eye -witnesses of the case ---Perusal of statement of
complainant showed that he had narrated the same facts and figures, as laid down in the FIR, about the recovery of 27 packets of charas weighing 32 kilograms and 01 packet of opium weighing 500 grams from the bag owned by the accused--- Statement of complainant further
revealed that his statement was in line with the FIR while narrating the facts in respect of
date, time, place and mode of recovery ---Circumstances established that the prosecution
succeeded in proving its case against the accused beyond any reasonable doubt ---Appeal
against conviction was dismissed accordingly.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Criminal Procedure Code (V of 1898), S. 103--- Possession of narcotic ---
Appreciation of evidence ---Non -association of private persons as witnesses ---Effect ---
Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus ---Defence objected that there was sheer violation of S. 103,
Cr.P.C. for not associating private mashir, despite the fact that private persons we re also
travelling in the passenger bus ---Validity ---Section 25 of the Act, 1997, denoted that non-
compliance of S. 103, Cr.P.C., could not be considered as strong ground for holding that trial of accused was bad in the eye of law, as official witnesses were competent witnesses and their statements could not be discarded merely for the reason that they belonged to any department ---Section 25 of the Act of 1997 suggested that there was no provision to comply
the S. 103, Cr.P.C ---On the other hand, the compla inant categorically stated while lodging
the FIR that no one from the passengers was ready to be associated as a private Mushir ---
Official witnesses were trustworthy witnesses, until and unless, any ill- will of the said
witnesses was found towards the accused---In the present case, defence had failed to point
out any ill -will of the Coast Guard Officials against the accused ---Circumstances established
that the prosecution succeeded in proving its case against the accused beyond any reasonable
doubt ---Appeal against conviction was dismissed accordingly.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) --- Possession of narcotic --- Appreciation of evidence ---Representative samples ---
Prosecution case was that 32 kilograms charas in 27 packets and one packet of opium weighing 500 grams were recovered from the possession of the accused while he was travelling in a passenger bus ---Defence objected that the representative samples had not been
taken from the recovered contraband material ---Validity ---Complainant specifically stated
that sample from each packet weighing 50/50 grams, total 1350 grams from the recovered Charas and 50 grams from the Opium, was separated for chemical analysis and that portion of his statement was not challenged in the cross -examination ---Forensic Science Laboratory
Report further supported the contentions of complainant ---Circumstances established that the
prosecution succeeded in proving its case against the accused beyond any reasonable doubt --
- Appeal against conviction was dismissed accordingly.
Shah Muhammad v. The State 2012 SCMR 1276 rel.
(d) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Minor contradictions in the
statements of witnesses ---Not consequential ---Prosecution case was that 32 kilograms charas
in 27 packets and one packet of opium weighing 500 grams were recovered from the
possession of the accused while he was travelling in a passenger bus ---Though, there were
minor contradictions in the statements of the witnesses, but such contradictions could not dent the prosecution story and the acquittal order could not be passed merely on minor contradictions ---Circumstances established that the prosecution succeeded in proving its case
against the accused beyond any reasonable doubt --- Appeal against conviction was dismissed
accordingly.
Noor Bakhsh Baloch for Appellant.
Syed Iqbal Shah, Deputy Attorney General for the State.
Date of hearing: 28th July, 2022.
JUDGMENT
IQBAL AHMED KASI, J. ---Appellant Muhammad Nawaz son of Muhammad
Ghafoor, was tried in case FIR No.150 of 2021, dated 24th November, 2021, under section 9(c) of the Control of Narcotic Substances Act, 1997 ("the Act of 1997"), with Pakistan Coast Guard, Uthal, on the allegation that on interception and search of Shandar Coach, bearing Registration No.LXK -1012 at Naka Kharadi Check Post, coming from Winder side,
the appellant/accused was found travelling at seat No.16, and a bag, brown in color was kept
on his foots, to which he owned. On search of the said bag, 27 packets of Charas weighing 32
Kilograms and 01 packet of Opium weighing 500 grams were recovered.
2. The learned Special Judge Under the Control of Narcotic Substances/Sessions Judge,
Uthal ("the trial Court"), vide its judgment dated 22nd February 2022 ("the impugned judgment"), convicted the appellant under section 9(c) of the Act of 1997, and sentenced him to suffer R.I. for life imprisonment and to pay a fine of Rs.2,00,000/ - (rupees two lacs), in
default whereof to further undergo SI for 6 (six) months. Benefit of section 382- B was also
extended in favour of the appellant.
3. During trial, the prosecution examined five witnesses i.e. PW -1 Sobedar Arif
Mehmood (complainant of the case), PW -2 Sepoy Ghulam Muhammad (witness of recovery
memo), PW -3 Naik Zahid Usman (possessor of the contraband material), PW -4 Naik Shafqat
Ali (taken the recovered material for chemical examination) and PW- 5 Naib Sobedar
Shafiullah (Investigating Officer of the case). In his statement under Section under section 342, Cr.P.C, the appellant/accused denied the allegations levelled against him by the prosecution, but neither he opted to record his statement under section 340(2), Cr.P.C., nor produced any witness in his defence.
4. The learned counsel for the pauper appellant contended that the case of the
prosecution is false; that no public witness appeared to support the prosecution version with regard to alleged recovery of charas from the possession of the appellant; that all the prosecution witnesses are Coast Guard officials, whose testimony is devoid of any credibility, due to inter se contradiction in their statements; that the representative sample was not separated by properly separate parcel for each sample.
5. The Additional Prosecutor General, on the other hand defended the impugned
judgment by submitting that the evidence led by the prosecution had been relied upon by the trial Court, and the finding rendered do not call for interference; that there is nothing on record to indicate that any of the prosecution witness was inimical towards the appellant to falsely implicate him in the case.
6. We have heard the learned counsel for the parties and have also gone through the
impugned judgment and evidence produced by the prosecution. Perusal of record reveals that prosecution in support of its case produced as many as five witnesses, out of whom, PW -1
and PW -2 are the star/eye- witnesses of the case. Perusal of Statement of PW- 1 shows that he
has narrated the same facts and figures, as laid down in the FIR Ex.P/1- E, about the recovery
of 27 packets of charas weighing 32 kilograms and 01 packet of opium weighing 500 grams from the bag owned by the appellant/accused Muhammad Nawaz. The statement of PW- 1
further reveals that his statement is in line with the FIR while narrating the facts in respect of date, time, place and mode of recovery. On the other hand the learned counsel for the appellant neither disputed the fact that at the relevant time, the appellant was not travelling in the passenger bus, nor established that the seat No.16 was not reserved by him.
7. The contention of the learned counsel for the appellant that there is sheer violation of
section 103, Cr.P.C. for non- associating private Mushir, despite the fact that private persons
were also travelling in the passenger bus, having no weight. Before dilating upon the
contention of the learned counsel for the appellant, it would be advantageous to reproduce section 25 of the Act of 1997, which reads as under:
"25. Mode of making searches and arrest.--- The provision of the Code of Criminal
Procedure, 1898, except those of section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections."
The perusal of above provision of law denotes that non- compliance of section 103,
Cr.P.C. could not be considered as strong ground for holding that trial of accused is bad in the eye of law, as official witnesses are competent witnesses and their statements cannot be discarded merely for the reason that they belonged to any department. Section 25 of the Act of 1997, loudly suggests that there is no provision to comply the section 103, Cr.P.C, on the other hand, the complainant categorically stated while lodging the FIR that no one from the passengers was ready to associate them, as a private Mushir. It has already been settled down by the Hon'ble apex Courts that official witnesses are trustworthy witnesses, until and unless, any ill -will of the said witnesses is found towards the accused. In the instant case, learned
counsel for the appellant has failed to point out any ill -will of the Coast Guard officials
against the appellant/accused.
8. As far as the contention of the learned counsel for the pauper appellant that the
representative samples have not been taken from the recovered contraband material, has no substance, as the PW -1 specifically stated that sample from each packet weighing 50/50
grams, total 1350 grams from the recovered Charas and 50 grams from the Opium, was
separated for chemical analysis and this portion of his statement was not challenged in the cross -examination. The FSL report Ex.P -5/B further supports the contentions of PW -1. In the
case titled Shah Muhammad v. The State 2012 SCMR 1276, the Hon'ble Supreme Court of Pakistan, observed as under:
"As far reliance placed by the learned counsel for the appellant on the judgment of
Ameer Zaib (supra), we find that the facts of this case are distinguishable in as much
that in the instant case appellant has consistently denied the factum of recovery of any narcotics from him whereas there is sufficient ocular account of two witnesses that in
their presence and from possession of the appellant huge quantity of charas was
recovered weighing 8 -1/2 mound. In this case both the witnesses have categorically
stated that 10 grams each were taken out from each bundle making the total of 170
grams which were dispatched for analysis to the Chemical Laboratory, the report
whereof is positive. Whether 10 grams sample each was taken from 17 bags or 17 packets at least one fact is common, between the two witnesses that 17 samples were
taken from 17 bags/packets, making total of 170 grams for comparison. Each
bag/packet if taken to be of one kilogram then the minimum quantity regarding which it is proved that taken samples there from were weighing 17 kilograms. If this is the
case of the appellant, even then his case still remain within the scope of section 9(c),
C.N.S.A."
9. Moreover, though there are minor contradictions in the statements of the PWs, but
that contradictions cannot dent the prosecution story and the Apex Courts have also held in
remarkable judgments that acquittal order cannot be passed merely on minor contradictions.
Thus, in view of above facts and circumstances, we found that the learned counsel for
the appellant has failed to make out his case, as such, the Criminal Jail Appeal No. 21 of
2022, is hereby dismissed.
JK/131/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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