2023 P Cr. L J 621
[Balochistan]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
NABI KHAN---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 608 of 2021, decided on 15th November, 2022.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Transportation of narcotics ---Appreciation of evidence ---Contradictory
statements ---Non -production of sample -bearer ---Effect ---Accused was alleged to have been
apprehended while transporting 22 kilograms of narcotics ---Complainant ha d stated during
cross -examination that no one from the levies station had come on the spot during recovery
and making of parcels and that Tehsildar had come later at the place of recovery whereafter
he along with other staff went to police station along wi th Tehsildar where Assistant
Commissioner was already present ---Tehsildar (Investigating Officer) contradicted the
complainant and stated that after registration of the FIR, he rushed to the place of recovery, prepared site plan, parcels and he was the one who had extracted samples for chemical
analysis ---Recovery had not been proved beyond any reasonable doubt as the testimonies
were highly doubtful, contradicting each witness on material points of search, recovery and making of parcels ---Sample -bearer was also not produced before the Trial Court ---Appeal
was allowed and the accused was acquitted of the charge, in circumstances.
State v. Imam Bakhsh 2018 SCMR 2039; Khairul Bashar v. State 2019 SCMR 930
and Kamran Shah v. The State 2019 SCMR 217 ref.
Ali Ahmed Lehri and Abbas Zehri for Appellant.
Naeem Kakar, Additional Prosecutor General (APG) for the State.
Date of hearing: 1st November, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Appellant has called in question the judgment
dated 08.12.2021 ("impugned judgment") authored by Special Judge of the court constituted under the Control of Narcotic Substances Act, 1997- Sessions Judge Mastung emanating from
an FIR No. 20 of 2021 dated 14. 06.2021 registered within the remits of Levies Station Wali
Khan Mastung under section 9(c) of Control of Narcotic Substances Act, 1997 ("Act of
1997") for recovery of 22 kgs of charas concealed in a Trailer -vehicle bearing Registration
No. TCL -535 driven by the appellant Nabi Khan, who was booked and after denial of
indictment during trial, led the prosecution to produce four witnesses so as to bring home the
charge; appellant was examined as contemplated under section 342 of the Criminal
Procedure Code, 1 898 ("Cr.P.C."), who refuted the allegations by pleading innocence and
also stepped into the witness box in his defence by producing track record of his trailer
consisting of seven pages (Ex.DW/1), copy of Google map (Ex.DW/2), copy of website maintained b y Deputy Commissioner, Mastung (Marked DW/1) and Toll Tax Ticket
(Marked DW/2) respectively. He also produced Nisar Ahmed Secretary Press Club (DW- 1)
who produced news clippings (Marked as DW/1 to DW/4), thus after a full -fledged trial, the
learned Trial J udge returned a verdict of guilt, convicting and awarding sentence to the
appellant under section 9(c) of the Act of 1997 to suffer life imprisonment and to pay fine of Rs.200,000/ -; in default to further undergo for a period of six months' SI with the pre mium of
section 382- B, Cr.P.C.
2. Mr. Ali Ahmed Lehri, Advocate for the appellant inter alia contended that the
appellant is innocent, who has falsely been involved and substituted in the instant case. He maintained that the alleged recovery of narcotics h as been foisted upon the appellant, which
is otherwise is highly doubtful and that the prosecution has also failed to prove the safe custody and transmission of the contraband i.e., beginning from making the parcels on the spot to the Federal Narcotics Tes ting Laboratory, Balochistan Quetta ("FNTL Quetta").
According to him, the prosecution witnesses have contradicted each other on material points i.e., recovery, making parcels and transmission, deposit of narcotics in the Malkhana and its
transmission to t he FNTL. He emphasized that the confidence inspiring defence evidence has
not been taken into account by the learned trial judge, which has made the impugned judgment perverse, which is unsustainable, henceforth, requested for acquittal of the appellant.
Conversely, learned APG vigorously opposed the appeal and acquittal of the
appellant. He urged that the prosecution has proved the recovery of the contraband without any shadow of doubt and that the FNTL report has strengthened the case of the prosecution,
which by all means is in accordance with the protocols, hence the appeal being devoid of merits dismissal.
3. Heard. Record pondered upon with the able assistance of learned counsel for the
adversarial parties. The prosecution to prove the recovery mainly relies upon the testimony
of Bilal Ahmed Naib Risaldar, complainant (PW -2) and recovery witness Inayatullah (PW -3)
whereas to prove safe custody and transmission relies upon the testimony of Kifayatullah ASI (PW -1) and Muhammad Akram Harifal Tehsildar (PW- 4).
Complainant (PW -2) reiterated what he had reported in his murasila (Ex.P/2 -A). He
testified to have recovered 18 packets of charas, weighing 22 kgs on a tip off from the spare tyres of the vehicle driven by the appellant, whereof he extracted 10 gram s from each packet
and prepared parcels Nos.2 to 19, whereas the remaining charas was put in parcel No.1.
During cross -examination, he stated that no one from the levies station came on the spot
during recovery and making parcels and that Tehsildar came la ter at the place of recovery
whereafter he along with other staff went to Police Station along with Tehsildar (PW -4)
where AC was already present there and arrangements were being made for the press
conference regarding the recovery of narcotics from the a ppellant. Investigating officer
("IO") Tehsildar Muhammad Akram Harifal (PW -4) contradicted the complainant (PW -2)
which has made the entire recovery highly doubtful. He (PW -4) testified that on 14.06.2021
after registration of the FIR (Ex.P/4- A), he rushe d to the place of recovery; prepared site plan
(Ex.P/4 -B). He categorically stated that he prepared parcels and he was the one who
extracted samples for chemical analysis, which belies complainant (PW -2).
4. Recovery witness (PW- 3) deposed that the vehicle was taken into the levies station
Wali Khan and also admitted during cross -examination that the trailer -vehicle was searched
at the bungalow of AC, whereas the remaining witnesses stated otherwise. He stated that the recovery was effected by complainant ( PW-2), which fact contradicts the IO (PW- 4). After
critical analysis of the depositions of the above witnesses, we believe that the recovery has not been proved beyond any reasonable doubt as their testimony is highly cloudy, contradicting each witness on material points of search, recovery and making of parcels.
5. Adverting to the evidence pertaining to safe custody and transmission, the deposition
of Kifayatullah ASI (PW -1) is pivotal. He testified that on 14.06.2021, while he was present
in levies station Wali Khan as Head Moharrar, at 5:30, IO (PW -4) handed over him parcel
No.1, whereof he made entry in Register No.19 and kept the same in safe custody of Malkhana whereas parcels Nos.2 to 19 were sent for chemical analysis to the laboratory through muras ila of Deputy Commissioner, whereof chemical report was received on
30.06.2021. His statement does not reveal that the parcels Nos.2 to 19 were also deposited by him in the Malkhana. He also did not state that when samples were taken back and to whom the s ame were handed over for onward transmission to the FNTL. The FNTL report (Ex.P/4-
E to Ex.P/4 -X) depicts that the purported samples were received on 17.06.2021 by one Head
constable Kifayatullah (PW -1). There is no explanation on record that if Head Moharr ar
(PW -1) had sent the samples on 16.06.2021 then why it was not received on the same day,
rather were received on 17.06.2021. So the safe custody and transmission seems to have been jeopardized. Moreover, as stated, the samples were received in the office of FNTL through
HC Kifayatullah, but said Kifayatullah has not been produced. If said HC Kifayatullah is considered to be Kifayatullah ASI (PW -1) then it was expected from him to have had stated
that he was the person who took the said sample and delivere d it in the office of FNTL for
chemical examiner, but it is not so. In this regard we are fortified with the dictum expounded in the cases of 'State v. Imam Bakhsh' (2018 SCMR 2039), 'Khairul Bashar v. State' (2019 SCMR 930) and 'Kamran Shah v. The State' (2019 SCMR 217).
6. In view of the above, we are clear in mind that the prosecution has not only miserably
failed to prove the recovery but also the safe custody and transmission of the contraband from the place of recovery to the office of FNTL as well. A fter such conclusion, the defence
plea becomes of no deal for discussion.
Corollary, the appeal is allowed, the impugned judgment of the Trial Court is set -
aside and the appellant is acquitted of the charge.
The appellant is incarceration, who be set fre e, if not detained in any other case.
SA/37/Bal. Appeal allowed.
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