2024 P Cr. L J 534
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
TANVEER and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 104 of 2022, decided on 15th June, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Benefit of doubt ---Scope ---
Prosecution case was that ten kilograms charas and 800 grams opium were recovered from
the secret cavities of the vehicle driven by accused ---Complainant, during his cross -
examination, gave the details of the recovery from each door and making of the parcels, however did not utter a single word in his examination- in-chief about extraction of any
sample, arrival of the Investigating Officer and handing over of parcels to him ---Police
Constable/recovery witness reiterated what Seizing Officer had stated ---Charas was found to
be in nine pieces, but the Seizing Officer had not mentioned a word that the charas was recovered in pieces ---During production and exhibition of the parcels before the Trial Court,
the charas and opium were found in one parcel, having the seal of police station thereon, which was again a surprise as according to the Seizing Officer, two parcels were prepared separately ---Recovery witness also did not mention about arrival of the Investigating Officer
at the place of recovery nor did he state that the narcotics and car were handed over to him ---
Statement of both the witnesses with regard to recovery of the contraband and preparation of the parcels had made the recovery doubtful ---Circumstances established that the prosecution
had failed to prove the charge against the accused beyond shadow of doubt ---Appeal against
conviction was allowed accordingly.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence--- Benefit of doubt ---Safe
custody and transmission of narcotics for analysis ---Scope ---Prosecution case was that ten
kilograms charas and 800 grams opium were recovered from the secret cavities of the vehicle driven by accused--- Record showed that the Malkhana Incharge had not been produced to
corroborate the testimony of the Investigating Officer, regarding handing over the parcels to him---In absence of the deposition of the Malkhana Incharge with whom allegedly the
parcels were deposited, the safe custody and transmission of the contraband would remain unsubstantiated, creating doubt in the case of the prosecution---Although Police Constable was produced by the prosecution, who deposed that on 11.10.2020, he took parcel Nos. 1 and 2 at 11:00 p.m. and deposited the same on 12.10.2020 at 10:00 a.m. in the Laboratory and
went to another city on 18.10.2020 and brought back the Forensic Science Laboratory Report
along with parcels on 19.10.2020, but he did not state that from whom he received the parcels and in return, to whom he handed back the same, which made custody and transmission of the recovered narcotics highly doubtful ---Circumstances established that the
prosecution had failed to prove the charge against the accused beyond shadow of doubt ---
Appeal against conviction was allowed accordingly.
Qaiser Javed Khan v. The State PLD 2020 SC 57; Kamran Shah and others v. The
State 2019 SCMR 1217; Fayyaz v. The State 2022 MLD 1452; Rehmatullah v. The State 2011 YLR 2477 and Muhammad Imran v. The State 2015 PCr.LJ 45 rel.
Abdul Rahim Khetran for Appellants.
Habibullah Gul, A.P.G. for the State.
Date of hearing: 6th April, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Appellants Tanveer and Ihsan have called in
question the validity and legality of the judgment dated 22.02.2022 ("impugned judgment"),
authored by learned Special Judge CNS - Sessions Judge, Zhob ("Trial Court"), constituted
under Control of Narcotic Substances Act, 1997, whereby in a case vide FIR No.02 of 2020 registered within the precincts of Police Station Manikhwa, Sherani for the offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 ("Act of 1997), the appellants were convicted and sentenced to suffer R.I for life and to pay fine of Rs.100,000/ - (rupees one hundred thousand) each or in default thereof to further undergo one
(01) year's SI each with the premium of section 382- B of the Criminal Procedure Code, 1898
("The Code").
2. In brief, on 11.10.2020 Muhammad Rafique SI/SHO (PW -1), complainant got lodged
the FIR ibid with the averments that on 11.10.2022, acting upon a spy information regarding inter -provincial narcotics smugglers, consisting upon three men and a woman, they
intercepted a white 2.OD car and on search of the same, 09 packets weighing 10 kilograms charas and one packet weighing 800 grams opium were recovered from the secret cavities in the said vehicle, hence the appellants as well as other co -accused persons were arrested and
the recovered narcotics along with 2.OD car bearing registration No.MR -AC-916 were taken
into custody.
3. After necessary investigation, the appellants were sent up to the trial Court to face the
deeds of their culpability, where on commencement of the trial, the appellants entered the plea of denial. In meanwhile, Muhammad Anwar and Jannat Bibi who were granted bail did not turn up, as such were declared proclaimed offenders. The prosecution in order to bring home the charge produced as many as five witnesses. The appellants were examined under section 342 The Code, who denied the allegations and professed innocence and got recorded
their statement under section 340(2) of The Code, wherein appellant No.1 Tanveer deposed that he was resident of Mandi Baha- ud-Din, Punjab and he had come to Quetta to offer fateha
of maternal cousin of his wife and that on the date of occurrence he was returning home in a 2.OD car and at Manikhwa FC check -post, the driver of the vehicle went to make entry, but
did not return; after a while, the FC officials came there, blind fold, arrested them and let free the driver of the vehi cle. Appellant No.2 Ihsan in his statement recorded under section
340(2), Cr.P.C., stated that he was working as a crate maker in Quetta and on account of
ailment of his father, he was travelling towards Punjab and reitriated the statement of appellant No.1. After culmination of the trial, the appellants were found guilty as such were convicted and sentenced by the Trial Court in the terms mentioned in para supra.
4. Heard. Record sussed out, which reveals that on 11.10.2020 Muhammad Rafique SI
(PW -1) on a tip of intercepted a 2.OD car bearing registration No.MR -AC-916, wherein
appellant Tanveer on the driver seat, proclaimed offender Jannat Bibi on the adjacent seat,
whereas appellant Muhammad Ihsan and proclaimed offender Anwar were found seated at rear. According to him, while searching the car, from the secret cavities of the doors 10 kgs of charas and 800 grams of opium were recovered, whereof 10 kgs charas were put in the parcel No.1 and 800 grams opium in Parcel No.2 and that from the personal search of the appellants and proclaimed offenders mobile phones and CNICs were recovered, whereafter, murasila (Ex.P/1 -A) was sent for registration of the FIR.
During his cross -examination, he gave the details of the recovery from each door and
making of the parcels, however did not utter a single word in his examination- in-chief about
extraction of any sample, arrival of the Investigating Officer ("IO") Ghulam Ali SI (PW -5)
and handing over him parcels Nos.1 and 2. Abdul Halim Constable (PW -2) is recovery
witness, he reiterated what Seizing Officer (PW- 1) had stated. He produced recovery memo
of charas and opium as (Ex.P/2 -A). He produced 10 kgs of charas, consisting of 9 pieces
as Art.P/1 to Art.P/9 as well as produced the car secured through (Ex.P/2- B) and produced
it as Art.P/14. He produced the recovery memo of cell phone and CNIC recovered from accused Tanveer (Ex.P/2 -C) as Art.P/15 and Art.P/16, recovery memo of Q -Mobile
recovered from accused Jannat Bibi (Ex.P/2 -D) as Art.P/17, CNIC and driving license
recovered from accused Muhammad Anwar and one driving license (Ex.P/2- E) as Art.P/18 to
Art.P/20 and Q -Mobile recovered from accused Muhammad Ehsan (Ex.P/2- F) as Art.P/21.
The charas was found to be in 9 pieces, but the Seizing Officer (PW -1) had not mentioned a
word that the charas was recovered in pieces. During production and exhibition of the parcels before the trial Court, the charas and opium were found in one parcel, having the seal of police station thereon, which is again a surprise as according to the Seizing Officer (PW -1),
two parcels bearing Nos.1 and 2 were prepared separately. Recovery witness (PW -2) also did
not mention about arrival of the IO (PW -5) at the place of recovery nor did he state that the
narcotics and car were handed over to him. The statement of the both the witnesses with regard to recovery of the contraband and preparation of the parcels have made the recovery cloudy.
5. As far as the safe custody and transmission is concerned, the testimony of Malkhana
Incharge is crucial. Astonishingly, the Malkhana Incharge has not been produced to corroborate the testimony of the IO Ghulam Ali SI (PW -5), regarding handing over the
parcels to him. In absence of the deposition of the Malkhana incharge with whom allegedly the parcels were deposited, the safe custody and transmission of the contraband shall remain unsubstantiated, creating doubt in the case of the prosecution. Although C onstable Abdul
Halim (PW -2) was produced by the prosecution, who deposed that on 11.10.2020, he took
parcel Nos.1 and 2 at 11:00 p.m and deposited the same on 12.10.2020 at 10:00 a.m in the Laboratory and went to Quetta on 18.10.2020 and brought back the FSL report along with
parcels on 19.10.2020, but he did not state that from whom he received the parcels and in
return, to whom he handed over back the same, which makes custody and transmission of the recovered narcotics highly doubtful.
6. Irresistibly, we are of the view that the prosecution has failed to prove the recovery
and safe custody and transmission from place of recovery to Malkhana and onward transmission to Federal Narcotics Testing Laboratory Balochistan, Quetta ("FNTL") as their statements are found by us to be highly doubtful, offending the dicta drawn in the cases of 'Qaiser Javed Khan v. The State' (PLD 2020 SC 57) and 'Kamran Shah and others v. The State' (2019 SCMR 1217).
Thus, the conclusion drawn by the learned trial judge are irrational and contra to the
evidence, which merits to be set at naught.
7. So be it, the prosecution has also failed to prove the factum
that the passengers seated adjacent or at rear seats had any knowledge of the narcotics,
thus they otherwise are absolved from the indictment. In this regard, we are guided by the dictum expounded in the cases of 'Fayyaz v. The State' (2022 MLD 1452), 'Rehmatullah v. The State' (2011 YLR 2477) and 'Muhammad Imran v. The State' (2015 PCr.LJ 45).
8. For the forgoing reasons, the appeal is allowed, and in consequence thereof the
impugned judgment dated 22.02.2022 passed by the trial Court is set aside and appellants Tanveer son of Muhammad and Ihsan son of Basheer Ahmed are acquitted of the charge.
The appellants be released forthwith, if not incarcerated in any other case.
JK/121/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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