2024 P Cr. L J 1207
[Balochistan]
Before Naeem Akhtar Afghan and Sardar Ahmed Haleemi, JJ
JAMAL AHMED ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (T) 55 of 2021 and Murder Reference No. (T) 04 of 2021, decided on
10th October, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9 (c) ---Possession of narcotics ---Appreciation of evidence--- Safe custody and
transmission of narcotic and samples established ---Prosecution case was that 1000 kgs of
Charas was recovered from the body of the vehicle driven by the accused---Evidence of prosecution revealed that the chain of safe custody and transmission of contraband began with seizure of contraband by the Investigating Officer and was followed by the separation of representative samples of the seized contraband and safe custody of representative samples of contraband with the police and dispatch of the same to the Chemical Examiner for examination and testing---Link of said chain was not missing in the present case ---Safe
custody and transmission of contraband and its samples had been proved by the prosecution---Appeal was dismissed with modification in sentence.
Mst. Sakina Ramzan v. State 20211 SCMR 451 ref.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S.9(c) ---Possession of narcotics ---Appreciation of evidence--- Sentence, reduction in---
Mitigating circumstance --- First time offender ---Record revealed that the appellant was a
first offender without a previous criminal history , which aspect is considered as a mitigating circumstance while deciding question of sentence because an accused is entitled to the benefit of any available mitigating circumstances --- High Court, while maintaining
conviction of the appellant, converted his sentence of death into imprisonment for life --- Appeal was dismissed with said modification in sentence.
Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Iftikhar Ahmad Khan
v. Asghar Khan and another 2009 SCMR 502 ref.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9 ( c ) ---Possession of narcotics ---Appreciation of evidence ---Police officials as
witnesses---Police employees are competent witnesses like any other independent witness and their testimony can not be discarded merely on the ground that they were police employees
Zafar v. The State, 2008 SCMR 1254 ref.
Tahir Ali Baloch for Appellant (in Criminal Appeal No. (T) 55 of 2021).
Sudheer Ahmed, Deputy Prosecutor General (DPG) for the State (in Appeal No. (T)
55 of 2021).
Sudheer Ahmed, Deputy Prosecutor General (DPG) for the State (in Murder
Reference No. (T) 4 of 2021)
Tahir Ali Baloch for Respondent (in Murder Reference No. (T) 04 of 2021).
Date of hearing: 17th March, 2022.
JUDGMENT
SARDAR AHMED HALEEMI, J .---This common judgment, disposes of Criminal
Appeal No(T). 55 of 2021 and Murder Reference No(T).04 of 2021.
The Criminal Appeal No(T). 55 of 2021 is directed against the judgment dated 6th
May 2021 (hereinafter the "impugned judgment") passed by the learned SpecialJudge under
the Control of Narcotic Substances Act, 1997 (hereinafter the "trial Court"), whereby the
appellant was convicted and sentenced under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter the "Act, 1997") to death with fine of Rs. 700,000 (Seven lac only) and in default of payment of fine, the appellant shall further suffer nine (9) months
S.I. It was further directed that the appellant be hanged by the neck till he is dead, however,
same may not be executed until confirmed by this Court.
While Murder Reference No.04 of 2021 has been transmitted by the trial Court for
confirmation of the death sentence of the appellant or otherwise as envisaged under Section
374 Cr.P.C.
2. The prosecution story, in brief, is that on the complaint of Hakeemullah SI, CIA staff,
an FIR No. 191 of 2020 dated 28th September 2020 under section 9(c) of the Act, 1997 was registered at Police Station City, Turbat, wherein the complainant alleged that he alongwith other police officials were on patrolling of the area; at about 12:30 a.m. they met with the secret informer at Dannuk road near Qumi Pump, who informed that a person namely Jamal Ahmed son of Moula Bakhsh (the appellant) was smuggling charas from M -8 road to Gwadar
in a Zamyad blue colour vehicle (vehicle in question); on such information, they reached at D-Baloch Naka and started checking of the vehicles; in the meanwhile at about 1:15 a.m, the
vehicle in question without number plate came, which was stopped; on query, the driver disclosed his name as Jamal Ahmed son of Moula Bakhsh resident of Saad Abad Kalatuk, Turbat (the appellant), which was confirmed from his CNIC recovered from him; on checking, a tarpaulin on the body of the vehicle was found, tied with ropes; on removal, 50 plastic gunny bags containing 1000 packets of charas weighing 1000 kilograms each packet total 1000 kilograms lying in the vehicle were recovered, which were taken into possession and the appellant was arrested, hence this report.
3. After usual investigation, the challan of the case was submitted before the trial Court,
wherein charge was framed against the appellant, which was denied by the appellant.
4. The prosecution examined five witnesses; at the end of prosecution evidence, the
appellant was examined under section 342 Cr.P.C, wherein he denied the allegations levelled against him. He examined himself on oath as envisaged under section 340(2), Cr.P.C, and also produced three witnesses in his defence.
5. On conclusion of trial, the trial Court vide impugned judgment convicted and
sentenced the appellant, hence, this appeal.
6. Learned counsel for the appellant contended that the prosecution has failed to
establish the safe and secure custody of recovered contrabands during the trial, which was also not supported by the report of chemical examiner, which creates reasonable doubt in the case of the prosecution; that the prosecution has failed to prove the recovery of contrabands through independent witnesses, all the witnesses of prosecution are police officials; that besides delay in recording statements of PW -3 and PW -3 under section 161, Cr.P.C. the safe
custody and safe transmission have not been proved.
7. Learned Deputy Prosecutor General controverted the contentions of the counsel for
the appellant with the statement that huge quantity of contrabands were recovered; the prosecution witnesses remained consistent and defence has failed to bring out any material irregularity or illegality from the statements of the prosecution evidence.
8. We have heard the learned counsel for the appellant as well as learned Deputy
Prosecutor General and perused the available record with their able assistance.
9. Perusal of record reveals that the prosecution recovered contraband from the body of
the vehicle, which was covered with tarpaulin tied with rope. The recovered contraband was
consisting of forty- one (41) yellow bags containing 20 packets in each bag (total 820
packets), marked as ESPRESSOBAR and nine (09) bags containing twenty packets in each bag (total 180 packets) marked as egro. Total 1000 packets of contraband were recovered.
Each packet was weighing 1 kg and as such total 1000 kg of contraband was recovered. 05
grams from each packet was separated and 1000 samples (each weighing 5 gms) were
separately sealed for sending to laboratory for analysis and remaining packets of contraband were separately sealed.
10. Perusal of evidence of the prosecution reveals that the chain of safe custody and
transmission of contrabands began with seizure of contraband by the Investigating Officer, which is followed by the separation of representative samples of the seized contraband and safe custody of representative samples of contraband with the police and the dispatch of representative samples to the chemical examiner for examination and testing. No link of the aforementioned chain is missing in the instant case. Safe custody and transmission of contraband and its samples has been proved by the prosecution. In the case of Mst. Sakina Ramzan v. State 20211 SCMR 451, it has been held as follows by the Hon'ble Supreme Court: -
"The chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the
accused".
11. The defence plea of foisting of contraband upon the appellant has not been proved by
the defence.
12. Perusal of FSL report reveals that in top of the FSL report, 500 Pcls has been
mentioned, whereas in the bottom whereof, 1000 Pcls has been mentioned, which apparently is a typographical mistake and on such minor error, benefit cannot be extended to the appellant.
13. The appellant is a first offender. Record does not reveal of his previous criminal
history. This aspect is considered as a mitigating circumstance.
14. By now, it is settled principle of law that while deciding question of sentence, the
accused is entitled to the benefit of any available mitigating circumstance. The Hon'ble Supreme Court in the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) has observed as under:
"It will not be out of place to emphasize that in Criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
15. Similar view was also taken in the case of "Iftikhar Ahmad Khan v. Asghar Khan and
another" 2009 SCMR 502, wherein it has been observed that: -
"In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment for imprisonment of life if an outlook of case requires that course "
16. As regards the contention of learned counsel for the appellant that the prosecution
witnesses cannot be believed, as they all are police officials, we find no force in the contention, as police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees. Reliance can be made in the case of Zafar v. The State, 2008 SCMR 1254, wherein it was held as under:
"Police employees are competent witnesses like any other independent witness and
their testimony cannot be discarded merely on the ground that they are police
employees."
For what has been discussed above, while maintaining the conviction of Jamal Ahmed
appellant under section 9 (c) of the CNS Act, 1997 for recovery of 1000 kg charas, his sentence of death is converted into imprisonment for life. The amount of fine of Rs.700,000/ -
(Rupees Seven Hundred Thousand Only) shall remain intact, in default whereof, the appellant shall further undergo imprisonment for six months SI with benefit of section 382-B, Cr.P.C. The appeal stands dismissed with the above modification in the quantum of sentence of the appellant.
The Murder Reference No. 04 of 2021 is answered in NEGATIVE.
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