2023 P Cr. L J 711
[Balochistan]
Before Muhammad Ejaz Swati and Iqbal Ahmed Khan, JJ
FAZUL and 2 others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (T) 112 of 2021, decided on 15th August, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Transportation of narcotics ---Appreciation of evidence--- Benefit of doubt ---
Contradictory statements ---Scope ---Accused persons assailed their conviction under S. 9(c)
of Control of Narcotic Substances Act, 1997--- Complainant in his cross -examination stated
that only some money was recovered from personal possession of the accused while a
marginal witness stated that CNIC of accused was also recovered from personal search, in his presence--- Contradiction was avai lable in the statements of prosecution witnesses about
receiving of information from a spy---Fard -e-bayan was sent through a constable for lodging
the FIR but the prosecution did not produce him as a Court witness ---One of the marginal
witnesses had failed to identify the accused persons before the Trial Court, during his
examination -in-chief ---Vehicles used for transportation of narcotics were produced before
the court but the engine numbers of both the vehicles were found different to those mentioned in t he recovery memo ---Record revealed that statement of accused was recorded
by Investigating Officer 10 days prior to the alleged incident ---Occurrence had not taken
place in the mode and manner narrated in the FIR ---No doubt, huge quantity of contraband
was recovered but recovery of huge quantity was not the only criteria to convict the accused
charged with trafficking of contraband unless the indictment was proved by the prosecution beyond reasonable doubt through confidence inspiring and worth reliable evi dence ---Appeal
was allowed and the accused persons were acquitted of the charge, in circumstances.
Minhaj Khan v. The State 2019 SCMR 326 rel.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9 ---Possession of narcotics ---Benefit of doubt ---Scope ---In order to bring home guilt in
narcotic cases, prosecution must bring reliable evidence in support of its charge ---Even a
single doubt in the case against an accused would be sufficient to create a reasonable doubt instead of existence of series o f contradictions.
Jadain Dashti for Appellants.
Sudheer Ahmed Baloch, Deputy Prosecutor General for the State.
Date of hearing: 5th August, 2022.
JUDGMENT
IQBAL AHMED KASI, J. ---This Criminal Appeal under section 48 of Control of
Narcotic Substances Act, 1997, is presented against the judgment dated 25th November,
2021 ('the impugned judgment') passed by the Court of Special Judge, CNSA Mekran at
Turbat ('the trial Court'), whereby, appellants Fazul son of Rozi, Sarfraz son of Bandhu and Safar Khan son of Haider, were convicted under section 9(c) of the Control of Narcotic
Substances, Act, 1997 ('the Act of 1997') and sentenced each to suffer Imprisonment for life and to pay a fine of Rs.500,000/ - (rupees five lac) each, or in default to fur ther suffer S.I. for
06 (six) months each. Benefit of section 382- B, Cr.P.C. was also extended in their favour.
2. Precise facts, arising out of the instant appeal are that on 27th December, 2020,
complainant Yar Jan SIP, lodged a report, vide case FIR No.43 of 2020, with Police Station CTD, Turbat, under section 9(c) of the Act of 1997, with the averments that on the said date, they received a spy information regarding trafficking of contraband material by the members of BLF (banned organization) from Panj gur to Turbat, in two vehicles for selling the same to
raise funds and using the money for expenses of proscribed organization. Upon such
information, they composed a Nakha at Meskain bridge and at about 12:30 p.m. while
checking the vehicles, they stooped two vehicles i.e. double door pick -up, being driven by
appellant/accused Fazul and a Surf, being driven by appellant/accused Sarfraz, whereas, appellant/accused Safar Khan was seated on the rare seat of the vehicle, driven by appellant/accused Safraz. They were apprehended and during search 30 packets of ICE
(Sheesha), weighing 30 Kilograms were recovered from conscious possession of the appellants/accused, concealed in the secrete cavities of the both vehicles.
3. After completion of usual investigation, the challan of the case was submitted before
the trial Court and the trial commenced. On, 04th February, 2021, the appellants were read over the charge under section 9(c) of the Act of 1997, to which they pleaded not guilty and claimed trial.
4. The prosecution in order to substantiate its case produced PW -1 Yar Jan, SI
(complainant of the case), PW- 2 Talal Jan SI/SHO (recovery witness of narcotics), PW -3
Khatir Ali SI/CTD (recovery witness of vehicles), PW -4 Faiz Muhammad, SI, PW -5 Zareef
Ahmed, SI, and PW -6 Malang Jan SI (Investigating Officer of the case).
5. On conclusion of the evidence from prosecution side, the statements of the appellants
were recorded under section 342, Cr.P.C. whereas, they neither opted to record their statement on oath, as provided under section 340(2), Cr.P.C. nor produced any witness in their defence, but lastly, they just claimed their innocence.
6. The trial of the case was concluded by the Court and after hearing the arguments of
the respective parties, vide impugned judgment , convicted and sentenced the appellants as
mentioned herein above.
7. Learned counsel for the appellants contended that the impugned judgment, passed by
the learned trial Court, is contrary to the facts and law and suffers from misreading and non-
reading of the evidence; that the prosecution has failed to prove the charge against the
appellants beyond reasonable doubt, as such, there was no occasion with the trial Court to award conviction to the appellants; that various contradictions and discrepancies, a ppeared in
the statements of prosecution witnesses, which rendered the same doubtful, but the trial Court has failed to extend benefit of doubt in favour of the appellants and passed the impugned judgment, hence the appellants are liable to be acquitted of the charge.
8. On the other hand learned DPG, appearing on behalf of the State, contended that the
appellants are involved in a heinous crime of trafficking contraband material; that the prosecution has produced a reliable and trustworthy evidence and the trial Court after
appreciating the same in its true perspective, has rightly passed the conviction order against the appellants; that there is no illegality or irregularity in the impugned judgment of the trial Court, warranting interference of this Court .
9. We have heard the learned counsel for the parties and with their assistance examined
the record. The prosecution case rests on the testimonies of PW -1 Yar Jan, SI, who is the
complainant of the case, PW- 2 Talal Jan SI/SHO, who exhibited recovery memo Ex.P/2 -A
and acknowledged the recovered contraband articles i.e. Sheesha. PW -3 Khatir Ali, SI/CTD,
is the witness of recovery memo of two vehicles Ex.P/3- A and acknowledged the same as
Article P/4 and Article P/5. Record further reveals that the prosecution in order to substantiate its case produced six witnesses, but from perusal of their statements, it appears
that certain variations discovered in their statements and from the contradictions in the statements of PWs, it appear to this Court that the case against appellant is not free from doubt.
10. Moreover, major contradictions, which are not ignorable, can be seen in the
statements of the Investigating Officer PW- 6, complainant PW -1 and also in the testimony of
marginal witnesses of recovery memos i.e. PW-2 and PW -3. The PW -1 in his cross -
examination stated that only some money was recovered from personal possession of the appellant/convict, while PW- 2 stated in his cross -examination that CNIC of the
appellant/convict was also recovered from personal search, in his presence. There is also contradiction in the statements of the PWs about receiving of information from an spy, as PW-1 stated that they received spy information on 26.12.2020, whereas, PW -3 stated that on
27.12.2020, when he was present in CTD Station, a spy was received. Furthermore, PW -1
stated that fard -e-bayan was sent through Constable Adnan, for lodging the FIR, but
prosecution does not produce him as a Court witness. It also appears that PW -3 also failed to
identify the appellants/convic ts before the trial Court, during his examination in chief. The
PW-3 produced the vehicles before the Court, but during examining the vehicles, the engine
numbers of both the vehicles were found different to that mentioned in the recovery memo Ex.P/3- A of the said vehicles, the relevant is reproduced as under:
11. Furthermore, the Investigating Officer, PW -6 Malang Jan, SI, in his cross -
examination stated that he recorded the statement of appellant/convict Sarfaraz on
07.12.2000, whereas, it appears from the record that the statement of the appellant/convict was recorded 10 days prior to the alleged incident. Furthermore, the PW -5 in his cross -
examination stated that his statement was recorded on the same day, whereas, the
Investigating Officer, of the cas e stated that he had not recorded the statement of PW -5 on
the same day.
12. As far as the allegation against the appellants with regard to their association with a
banned organization i.e. BLF, is concerned, the prosecution has also failed to bring any
cogent evidence on record to connect the appellants with the said banned organization and
further failed to prove that the appellants were trafficking the recovered contraband material for raising funds for such banned organization. The Investigating Officer , in question No.7 of
his cross -examination admitted that during investigation he failed to bring any iota of
evidence on record, which could prove that the appellants are members of any banned organization, or they collect money for the said organization. We have traced out all the
prosecution evidence, but could not found a single word from the prosecution about involvement of the appellants with the alleged banned organization.
13. Above referred contradictions in the statements of the prosecution witnes ses are
neither minor in nature nor could be ignored and same suggests that the occurrence had not taken place in the mode and manner narrated in the FIR and deposed by the prosecution witnesses before the Court. It is well settled that in order to bring h ome guilt in narcotic
cases, prosecution must bring reliable evidence in support of its charge and it has held
umpteenth time by the Hon'ble superior Courts that a single doubt in the case against an
accused would be sufficient to create a reasonable doubt instead of existence of series of
contradictions. No doubt, huge quantity of contraband has been recovered in the case along
with the vehicles in question, but recovery of huge quantity of narcotics is not the only criteria to convict the accused charged with trafficking of contraband unless the indictment is
proved by the prosecution beyond reasonable doubt through confidence inspiring and worth
reliable evidence, which is not the case in hand for the contradictions mentioned above.
Reliance in this respect is made to the case of Minhaj Khan v. The State (2019 SCMR 326), wherein, the Hon'ble Supreme Court of Pakistan has held as under:
"The discrepancies in the testimonies of the two witnesses; the purported lack of knowledge about certain things which they ought to have remembered whilst having a photographic recollection of other insignificant thins; not knowing those things which they should have; the fact that Constable Jehanzeb Khan reached the police station
before the complainant PW- 2; the non -production of Constable Jehanzeb Khan who
took the written complaint and was an eye -witness of the occurrence and of the
recovery memorandum s; and the inexplicable conduct of the complainant PW -2 in not
proceeding to the police station himself to register the FIR are matters of concern and
collectively of incredulity. The conclusion therefrom that we draw is that the prosecution had failed to establish its case against the petitioner beyond reasonable
doubt, or, at worst, that the petitioner was involved in a false case for ulterior
reasons."
14. Thorough and careful examination of the record would show that the learned trial
court has not appr eciated the case evidence in its true perspective and the conclusion drawn
by it are not borne out from the case record for which the impugned judgment cannot be sustained.
For what has been discussed above, this appeal is allowed, conviction and sentence
recorded by the learned Court of Special Judge, CNSA, Mekran at Turbat, vide judgment
dated 25th November, 2021, is set aside and consequently the appellants, namely, Fazul son of Rozi, Sarfraz son of Bandhu and Safar Khan son of Haider, are acquitted of the charge levelled against them, in case FIR No.43 of 2020, registered with Police Station, CTD Turbat, under section 9(c) of the Act of 1997. They be set at liberty forthwith if not required to be detained in any other case.
The impugned order of the trial Court to the extent of confiscation of case property
i.e. contraband material and vehicles i.e. double door pick up Engine No.127013, Chassis No.MRO -33UN -905500515 and Surf, Engine No. 1698527, Chassis No. VZN 2150004006,
shall remain intact.
SA/129/ 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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