2024 P Cr. LJ 1732
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
ZAREEF AHMED---- Appellant
Versus
The STATE---- Respondent
Criminal Appeal No.(s) 123 of 2022, decided on 2nd October, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(b) & 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Conviction
altered from S.9(c) to S.9(b) of Control of Narcotic Substances Act, 1997--- Sentence,
reduction in---Prosecution case was that 14,900 grams Charas was recovered from the
possession of the accused---Complainant reiterated what he had reported in his murasila ---
Complainant affirmed the recovery of 14,900 grams of Charas from a light green color bag held by the accused in his lap, while sitting behind the driving seat of a wagon during a blockade at National Highway Road on 27.11.2021 at about 05:00 pm ---Complainant was
subjected to an exhaustive cross -examination but the defense could not extract any beneficial
reply, which could help the accused---Similarly, recovery witness corroborated the testimony
of complainant and affirmed the recovery of 14,900 grams of Charas from a bag held by the accused in his lap ---Both the said witnesses were cross -examined extensively at length, but
nothing favorable could be extracted from their cross -examination, thus their statements went
unshattered---Record showed that sample was drawn from one packet, therefore the prosecution had only been able to successfully substantiate the indictment against the accused to the extent of one kilogram of Charas, thus accused deserved to be convicted and sentenced to such extent only---Appeal was partly allowed and keeping in view the peculiar circumstances of the present case, the conviction and sentence awarded to the accused under S.9(c) of the Act of 1997 was altered and converted into S.9(b) of the Act of 1997---Accused was convicted and sentenced to suffer two (2) years RI in circumstances ---Appeal was
dismissed with said modification in sentence.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----Ss. 9(b) & 9(c) ---Possession of narcotic substance ---Appreciation of evidence--- Safe
custody of recovered substance and its transmission to laboratory proved--- Conviction
altered from S.9(c) to S.9(b) of Control of Narcotic Substances Act, 1997---Prosecution case was that 14,900 grams Charas was recovered from the possession of the accused---To prove the safe custody and transmission of the narcotic substance, the prosecution produced Head Constable, who was incharge malkhana ---Said witness testified th at on the fateful day
Investigating Officer handed over to him parcel No.1 containing 14,900 grams of Charas and parcel No.2 having other recovered articles, which he deposited in the malkhana and made entry in Register No.19 ---On 29.11.2021 he handed back parcel No.1 to Constable for
onward transmission to the Forensic Narcotic Testing Laboratory for chemical analysis ---
According to said witness, after chemical analysis he once again received parcel No.1 from Constable, which he kept in the malkhana ---Furt hermore, Investigating Officer also
corroborated the testimony of all the said prosecution witnesses ---Complainant, recovery
witness and malkhana incharge were cross -examined on various aspects in order to discredit
them as well as to put dent pertaining to the recovery and safe custody and transmission of the narcotics, but such attempt remained unsuccessful ---After a critical analysis of the
evidence available on record, Court had reached the conclusion that the prosecution had successfully proved the rec overy of the narcotics from the accused, including its safe custody
and transmission from the place of recovery to the malkhana and then to the office of Forensic Narcotic Testing Laboratory ---However, record showed that sample was drawn
from one packet, therefore the prosecution had only been able to successfully substantiate the indictment against the accused to the extent of one kilogram of Charas, sthus accused deserved to be convicted and sentenced to such extent only--- Appeal was partly allowed and
keeping in view the peculiar circumstances of the present case, the conviction and sentence
awarded to the accused under S.9(c) of the Act of 1997 was altered and converted into S.9(b) of the Act of 1997---Accused was convicted and sentenced to suffer two (2) years RI, in circumstances ---Appeal was dismissed with said modification in sentence.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(b) & 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Separate
sample from each packet not secured ---Effect ---Conviction altered from S.9(c) to S.9(b) of
Control of Narcotic Substances Act, 1997---Sentence, reduction in ---Prosecution case was
that 14,900 grams Charas was recovered from the possession of the accused--- Prosecution
had failed to substantiate that the entire suspected 14,900 grams were Charas ---Prosecution
claimed that fifteen (15) packets of Charas, each containing one packet, were recovered from a bag held by the accused in his lap, meaning thereby that each packet of the suspected material weighed one kilogram, which were examined by the analyst, who observed in his report that during examination 500 grams of suspected material was consumed in the process of testing out of 14,900 grams of Charas, but the Forensic Narcotic Testing Laboratory Report did not show that as to whether from each packet samples were drawn and examined or one packet weighing one kilogram was consumed during the chemical analysis, making the report ambiguous, which at best could be believed only to the extent of one kilogram of Charas, because from each packet a separate sample must be secured for chemical analysis ---
If such protocol is not observed then the consolidated sample drawn from each packet shall represent only one packet of narcotic substance ---Therefore, the prosecution had only been
able to successfully substantiate the indictment against the accused to the extent of one kilogram of Charas, thus accused deserved to be convicted and sentenced to such extent
only---Appeal was partly allowed and keeping in view the peculiar circumstances of the present case, the conviction and sentence awarded to the accused under S.9(c) of the Act of 1997 was altered and converted into S.9(b) of the Act of 1997---Accused was convicted and sentenced to suffer two (2) years RI, in circumstances ---Appeal was dismissed with said
modification in sentence.
Ameer Zeb v. The State PLD 2012 SC 380 rel.
Nadir Ali Chalgari for Appellant.
Jameel Akhtar Gajani, APG for the State.
Date of hearing: 21st September, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Being dismayed, appellant Zareef Ahmed has
brought before us the captioned appeal, whereby he has impugned the judgment dated 01.11.2022 ("impugned judgment") drawn by learned Judge -CNS Court, Naseerabad at Dera
Murad Jamali ("Trial Court"), whereby he was convicted and sentenced under Section 9 (c) of The Control of Narcotic Substances Act of 1997 ("Act of 1997") to suffer life imprisonment R.I with a fine of Rs.100,000/ - (one hundred thousand) and in default of
payment of fine to further undergo three (3) months S.I with the premium of Section 382- B
of Cr.P.C., emanating from a case vide FIR No.60/2021 (Ex.P/5- A) registered with police
station, Azeez Bulo Shaheed, Noutal District Naseerabad by complainant Syed Haider Ali Shah SI (PW -1) for possessing 14.900 grams of baked 'charas' recovered from a light green
color bag lying in the lap of the appellant.
2. The facts essential for the disposal of the instant appeal as disclosed in murasila
(Ex.P/1 -A) of complainant Syed Haider Ali Shah SI CIA Incharge (PW -1) reveals that on
27.11.2021 he along with CIA officials during patrolling duty carried a blockade at National Highway Road near Altaf Abad and at about 05:00 pm intercepted a wagon bearing Registration No.JF -7889 coming from Quetta and found the appellant sitting behind the
driver seat, whereupon his personal search, found a light green color bag from the lap of appellant, wherefrom fifteen (15) packets of baked 'charas' were recovered, each containing
one kg, whereas one packet contained 900 grams of charas', total 14.900 grams , whereof
parcel Nos.1 and 2 were prepared.
After necessary investigation, the appellant was sent up to the Trial Court to face
deeds of his culpability, where on commencement of the trial, the appellant entered the plea
of denial, thus, the prosecution in order to bring home the charge, produced as many as six witnesses, and after close of the prosecution side, the appellant refuted the allegations so brought as envisaged under section 342 of Cr.P.C., whereafter, neither he stepped into the
witness box to depose on oath nor produced any evidence in his defence, hence on
conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in
para supra.
3. Learned counsel for the appellant inter alia contended that the prosecution has neither
proved the recovery of the narcotics nor its safe custody and transmission, but the Trial Court has recorded the conviction for the reasons contrary to the evidence available on record. He
added that there are material contradictions in the statements of the witnesses, which has made the recovery of narcotics highly doubtful, but the Trial Court has failed to appreciate such aspect of the case, henceforth, prayed for acquittal of the appellant.
On the other hand, learned APG resisted and vehemently opposed the contentions put
forth by the learned counsel for the appellant. He urged that prosecution has successfully proved the recovery of the narcotics from the possession of the appellant and above all, the prosecution has also proved the safe custody and transmission of the narcotics through tangible evidence, which has rightly been appreciated by the Trial Court while drawing the impugned judgment, thus requested for dismissal of the appeal.
4. Heard. Record vetted.
5. Complainant Syed Haider Ali Shah SI (PW -1) reiterated what he had reported in his
murasila (Ex.P/1 -A). He affirmed the recovery of 14.900 grams of 'charas' from a light green
color bag held by the appellant in his lap, while sitting behind the driving seat of a wagon
bearing Registration bearing Registration No.JF -7889 coming from Quetta during a blockade
at National Highway Road near Altaf Abad on 27.11.2021 at about 05:00 pm. He was
subjected to an exhaustive cross -examination but the defense could not extract any beneficial
reply, which could help the appellant. Similarly, Recovery witness Shoukat Ali HC (PW -2),
while deposing before the Court corroborated the testimony of complainant (PW -1) and
affirmed the recovery of 14.900 grams of 'charas' from a bag held by the appellant in his lap. He produced recovery memo. (Ex.P/2- A) and parcel No.1 as Art.P/1, sample of seal as
Art.P/2, fifteen packets of 'charas' as Art.P/3 to Art.P/17, bag as Art.P/18, memo. of personal search (Ex.P/2 -B), parcel No.2 as Art.P/19 and also produced specimen of seal, cash of
Rs.3120/ -, mobile phone and wallet as Art.P/20 to Art.P/25. Both the said witnesses were
cross -examined extensively at length, but nothing favorable could be extracted from their
cross -examination, thus their statements went un -shattered.
6. To prove the safe custody and transmission of the narcotics, the prosecution produced
Darya Khan HC (PW- 4), who was incharge malkhana. He testified that on the fateful day
investigating officer ("IO") Muhammad Murad Bhangar (PW -5) handed over him parcel
No.1 containing 14.900 grams of 'charas' and parcel No.2 having other recovered articles, which he deposited in the malkhana and made entry in Register No.19. On 29.11.2021 he handed over back parcel No.1 to Haibat Khan Constable (PW -3) for onward transmission to
the FNTL, Quetta for chemical analysis. According to him, after chemical analysis he once again received parcel No.1 from Haibat Khan Constable (PW -3), which he kept in the
malkhana. Furthermore, Muhammad Murad Bhangar IO (PW -5) also corroborated the
testimony of all the said prosecution witnesses. He produced FIR (Ex.P/5- A), memo. of
inspection (Ex.P/5- B) and due to emergency duty, when he proceeded to Gawadar on
03.12.2021, the investigation was assigned to second IO Dildar Ali (PW -6), who produced
FNTL report (Ex.P/6 -B), which affirms the material to be Hashish Pukhta. PW -1, PW -2 and
malkhana incharge (PW- 4) were cross -examined on various aspects in order to discredit them
as well as to put dent pertaining to the recovery and safe custody and transmission of the narcotics, but remained unsuccessful.
7. After a critical analysis of the evidence available on record, we have irresistibly
reached to a conclusion that the prosecution has successfully proved the recovery of the narcotics from the appellant, including its safe custody and transmission from the place of recovery to the malkhana and then to the office of FNTL, Quetta.
8. However, the prosecution has failed to substantiate that the entire suspected 14.900
grams were 'charas'. The prosecution claims that fifteen (15) packets of 'charas', each
containing one packet was recovered from a bag held by the appellant in his lap, meaning thereby that each packet of the suspected material weighed one kg, which were examined by the Federal Government Analyst Balochistan, Quetta, who observed in his report that during
examination 500 grams of suspected material was consumed in the process of testing out of
14.900 grams of 'charas'. But the FNTL report does not show that as to whether from each
packet samples were drawn and examined or one packet weighing one kg was consumed during the chemical analysis, making the report ambiguous, which at best can be believed only to the extent of one kg of 'charas'. In order to support our view, we would like to refer to the case of "Ameer Zeb v. The State" (PLD 2012 SC 380), wherein it was held that from each packet a separate sample must be secured for chemical analysis and if such protocol is not observed then the consolidated sample drawn from each packet shall represent only one packet of narcotics.
9. In wake of the above discussion, we believe that the prosecution has only been able to
successfully substantiated the indictment against the appellant to the extent of one kg of 'charas', thus he deserves to be convicted and sentenced to such extent only.
10. For what has been discussed hereinabove, the appeal is partly allowed and keeping in
view the peculiar circumstances of the instant case, the conviction and sentence awarded to the appellant under section 9(c) of the Act of 1997 is altered and converted into section 9(b) of the Act of 1997 and consequent thereto the appellant is convicted and sentenced to suffer two (2) years RI with a fine of Rs.20,000/ - (twenty thousand) and in default thereof to further
undergo two (2) months SI with the premium of section 382- B of Cr.P.C.
JK/62/Bal. Sentence modified.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,
let us know.