P L D 2019 Balochistan 34
Before Zaheer -ud-Din Kakar and Naeem Akhtar Afghan, JJ
SHAH NAZAR and another ---Appellants
Versus
The STATE ---Respondent
Criminal Appeal No.133 of 2018, decided on 4th March, 2019.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Prosecution case was that
80 Kilograms of charas was recovered from the secret cavities of the vehicle ---Samples were
separated for analysis and sealed into parcels ---Record showed that accused -appellant was
driving the vehicle at the time of his arrest ---Co-accused -appellant was sitting with him in
the vehicle ---Police party recovered total 80 -kilogram charas from secret cavities of the
vehicle on their disclosure and pointation ---Samples were prepared and on the next day, were
sent to the narcotics testing laboratory for analysis ---Government Analyst examined the
material and found that the same were"hashish pukhta" ---Knowledge and awareness of
narcotic would be attributed to the ac cused -appellant as he was driver of the vehicle ---Co-
accused -appellant could not be absolved from his responsibility as he was sitting with the
driver and he could not explain as to why he was sitting with the driver in a private vehicle ---
Both the appella nts were, therefore, responsible for transportation of huge quantity of charas
kept in the secret cavities of the vehicle, which undeniably remained in possession and
control of both the appellants ---Inspite of lengthy cross -examination of the witnesses,
nothing beneficial could be elicited of any help to the case of the accused -appellants ---Person
on driving seat of the vehicle would be held responsible for transportation of narcotic ---
Positive chemical report produced in evidence proved that substance rec overed from the
secret cavities of the vehicle of the accused was charas ---Prosecution had discharged its
initial onus while proving that substance recovered from secret cavities of the vehicle was
charas whereas appellants had failed to discharge its burd en in terms of S. 29(d) of the Act ---
No proof of enmity with the complainant and the prosecution witnesses had been brought on
record, thus, in absence thereof, the competence of prosecution witnesses being officials was
rightly believed ---Witnesses were n ot at all questioned about any previous ill -will or animus
with the accused -appellants whereby they could have been falsely nabbed and charged for
the possession of 80 -kilogram charas ---Prosecution had succeeded in proving the charge
against the accused -appellants beyond reasonable doubt, in circumstances ---Appeal was
dismissed accordingly.
Kashif Amir v. State PLD 2010 SC 1052 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 29 ----Presumption of possession of narcotic substance ---Burden of proof ---Scope ---
Once the prosecution had apparently established its case then under S.29 of the Act, burden
would shift upon the accused to prove contrary to the plea of prosecution.
(c) Criminal trial ---
----Evidence ---Testimony of Police Officia ls---Scope ---Mere fact that prosecution witnesses
were Police Officials, by itself could not be considered a ground to discard their statements --
-Police Officials were as good witnesses as private persons of the society.
Riaz Ahmed alias Raju v. The Stat e 2004 SCMR 988 rel.
(d) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40 ---Admissibility of information conveyed by accused ---Discovery of any fact on
the information of the accused in custody of police was admissible under Art.40 of Qanun -e-
Shahadat, 1984.
Jamil Lodeen and Naseer Ahmed Bazai for Appellants.
Shams -ud-Din Achakzai, Special Prosecutor ANF for the State.
Date of hering 27th February, 2019.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This Criminal Appeal is directed against the
judgment dated 24.04.2018 ("the impugned judgment"), passed by the Judge, Special Court
CNS Balochistan, Quetta ("the trial Court"), whereby the appellants Shah Nazar son of
Abdullah and Aziz Ahmed son of Muhamm ad Akbar have been convicted under Section 9
(c) of the Control of Narcotic Substances Act, 1997 ("the Act") and sentenced to suffer
Rigorous Imprisonment (RI) for life each with fine of Rs.100,000/ - (Rupees one Lakh) each,
in default thereof to further un dergo for a period of Six months Simple Imprisonment (SI)
each with benefit of Section 382 -B, Cr.P.C.
2. Precisely stated facts of the case are that on 11.06.2017 upon
receiving information regarding transportation of a huge quantity of narcotics by the
appellants Shah Nazar and Aziz Ahmed through a Suzuki Mehran Car via Quetta to interior
Sindh, the ANF party headed by SI Sajjad Ahmed reached to Nawan Killi near F.C Hospital
and started surveillance of vehicles. At about 4:20 p.m. a Suzuki Mehran bearing r egistration
No.AQH -796 appeared on the road from airport side. It was stopped, two persons were
sitting in it, one was driving the vehicle and other was sitting beside the driver seat. The
complainant inquired the name of the driver, to which he disclosed his name as Shah Nazar
son of Abdullah. The other accused was sitting beside the driver disclosed his name as Aziz
Ahmed son of Muhammad Akbar. During interrogation, the appellants disclosed that they
concealed the Charas in secret cavities of the vehicle whereupon the complainant prepared
disclosure memos and thereafter on the pointation of the appellants, the ANF party recovered
total 80 Killogram Charas from the secret cavities of the vehicle, samples were separated for
analysis and sealed into parcels. The Investigating Officer also prepared pointation memo of
the appellants. Consequently, on the basis of murasila, FIR No.17 of 2017, under Section
9(c) of the Act was registered with Police Station ANF, Quetta.
3. After formal investigation, report under Section 173 of Cr.P.C. was submitted before
the trial Court and the appellant was sent to face the trial. The trial Court, seized with the
matter, framed the charge on 20.07.2017 against the appellants under Section 9(c) of the Act,
to which they pleaded n ot guilty and claimed trial. At the trial, prosecution examined
following witnesses:
PW-1 Constable Jafar Khan was mushir of the disclosure and pointation memo of the
appellants Ex -P/1-A to Ex -P/1-D, recovery memos of Charas and vehicle bearing
registrati on No.AQH -796, Ex -P/1-E and Ex -P/ 1-F respectively.
PW-2 SI Sajjad Ahmed complainant has reiterated the contents of murasila and
produced the same as Ex -P/2-A.
PW-3 SI Aamir Rehmat, Investigating Officer, conducted
investigation, recorded statements of w itnesses, produced FIR as Ex -P/3-A, memo of
receipt of case properties and appellants Ex -P/3-B, memo of personal search of the
appellants as Ex -P/3-C and Ex -P/3-D, site plan Ex -P/3-E, FSL reports Ex -P/3-F to
Ex-P/3-H and challan Ex -P/3-J.
4. On completion of prosecution evidence, the appellants were examined under Section
342 Cr.P.C., wherein they professed innocence and denied the allegations levelled against
them. The appellants did not record their statements on oath nor led any witness in their
defence. On conclusion of the trial, the trial Court convicted and sentenced the appellants
vide impugned judgment dated 24.04.2018, hence this appeal.
5. Learned counsel for the appellants submitted that the impugned judgment is contrary
to facts and law; that th e appellants have been involved with mala fide intention and ulterior
motives; that the prosecution has relied upon the disclosure of the appellants which are
inadmissible under the law; that no private mushir was associated in recovery proceedings
which i s clear violation of section 103, Cr.P.C; that a false case has been registered against
the appellants and Charas has been foisted upon them; that the prosecution has miserably
failed to prove its case against the appellants beyond reasonable doubt, hence they are
entitled to be acquitted.
Learned Special Prosecutor ANF while supporting the impugned judgment has argued
that the prosecution has proved its case against the appellants who were found transporting
huge quantity of narcotics substance which was secured from the secret cavities of the
Suzuki Mehran Car which was being driven by the appellant Shah Nazar while appellant
Aziz Ahmed was sitting with him on front seat; that the ANF officials had no enmity to foist
such a huge quantity of charas upon th e appellants. He lastly prayed for dismissal of the
instant appeal.
6. We have heard the learned counsel for the parties and have gone through the available
record.
From perusal of the evidence furnished by PW -1 Constable Jaffar Khan, mushir of the
discl osure/pointation memos of the appellant (Ex -P/1-A to Ex -P/1-D) and recovery memo of
Charas Ex -P/1-E, and PW -2 SI Sajjad Ahmed complainant, it is proved that appellant Shah
Nazar was driving the vehicle i.e. Suzuki Mehran Car, at the time of his arrest appe llant Aziz
Ahmed was sitting with him in the vehicle and on their disclosure and pointation the ANF
party recovered total 80 Killogram Charas from secret cavities of the vehicle, samples were
separated on the spot, sealed parcels were prepared and on the n ext day i.e. 12.6.2017 sent to
the Federal Narcotics Testing Laboratory, Balochistan, Quetta for analysis. On 13.6.2017
Federal Government Analyst examined the material and found that the same are "Hashish
Pukhta". Knowledge and awareness would be attribut ed to the appellant Shah Nazar as he
was driver of the vehicle and the appellant Aziz Ahmed cannot be absolved from his
responsibility as he was sitting with the driver and he could not explain as to why he was
sitting with the driver in private vehicle, h ence both the appellants are responsible for
transportation of huge quantity of charas kept in the secret cavities of the vehicle, which
undeniably remained in possession and control of both the Appellants. In spite of lengthy
cross -examination of the PWs, nothing beneficial could be elicited regarding any help to the
case of the appellants.
It is well settled principle that a person who is on driving seat of the vehicle shall be
held responsible for transportation of narcotics as held by the Hon'ble Supre me Court in the
case of Kashif Amir v. State PLD 2010 SC 1052. The relevant portion is reproduced
hereunder:
"It is well settled principle that a person who is on driving seat of the vehicle, shall be
held responsible for transportation of the narcotics, having knowledge of the same as
no condition or qualification has been made in section 9(b) of CNSA that the
possession should be an exclusive one and can be joint one with two or more persons.
Further, when a person is driving the vehicle, he is lncharge of the same and it would
be under his control and possession, hence, whatever articles lying in it would be
under his control and possession. Reference in this behalf may be made to the case of
Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir
Khan v. State (1988 SCMR 1899) this Court has observed that knowledge and
awareness would be attributed to the Incharge of the vehicle."
7. As regard the arguments of the learned counsel for the appellants that private person
has not been ass ociated as a mushir is without legal substance for the reasons that once the
prosecution has apparently, established its case then under section 29 of the Act burden shifts
upon the accused to prove contrary to the plea of prosecution. In this case, positi ve chemical
report has been produced in the evidence, which proved that substance recovered from the
secret cavities of the vehicle of the accused was Charas. Prosecution had discharged its
initial onus while proving that substance recovered from secret ca vities of the vehicle was
Charas where appellants had failed to discharge its burden in terms of section 29(d) of the
Act.
8. The next contention of the learned counsel for the appellants that all the PWs are
ANF officials and their evidence requirts indep endent corroboration. Mere fact that
prosecution witnesses are ANF officials, by itself cannot be considered a ground to discard
their statements, as the ANF officials are as good witnesses as private persons of the society,
Reference in this context can b e made to the case of Riaz Ahmed alias Raju v. The State
2004 SCMR 988. Relevant portion is reproduced as under:
"We have considered the contentions and have gone through the documents appended
with this petition. The argument of the learned counsel that the testimony of police
officials does not inspire confidence is totally devoid of any force. Nothing has been
brought on record that any of the witnesses was having any malice against the
petitioner. The police officials are as good witnesses as private persons of the society.
The testimony of the prosecution cannot be thrown overboard simply on the ground
that it has come from the police officials."
Moreover, reluctance of general public to become witness in such like cases was a
judicially recognized fact and there was no option left but to consider the statement of an
official witness as no legal bar had been imposed in that regard.
9. In the instant case, no proof of enmity with the complainant and the prosecution
witnesses has been brough t on record, thus, in absence thereof, the competence of
prosecution witnesses being officials was rightly believed. Moreover, the PWs were not at all
questioned about any previous ill -will or animus with the appellants whereby they could have
been falsely nabbed and charged for the possession of the 80 Killogram Charas.
10. Another contention of the learned counsel for the appellants was that the disclosure
made by the appellants is inadmissible has no force because it is settled law that discovery of
any fact on the information of the accused in custody of police is admissible under Article 40
of Qanun -e-Shahadat Order, 1984 hich reads as under:
Article 40. How much of information received from accused may be proved. --- When
any fact is deposed to as disc overed in consequence of information received, from a
person accused of any offence, in the custody of a police -officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be pr oved."
A perusal of above Article reveals firstly that it serves as a proviso to Articles 38 and
39 of the Order. Secondly, it is founded on the principle that if the statement or information
of the accused amounts to confession or otherwise is supported by the d iscovery of a fact it
may be presumed to be true and not to have been extracted. In the instant case after
disclosure of the appellants, the complainant on their pointation recovered total 80 Killogram
Charas from the secret cavities of the Suzuki Mehran C ar.
Since the disclosure of the appellants led to the recovery of 80 Kilogram Charas, thus,
the disclosure made by them are admissible under Article 40 of the Order.
11. On re -appraisal of the evidence available on record it is concluded that the
prosecut ion has succeeded in proving the charge against the appellants beyond reasonable
doubt. It is further concluded while awarding conviction and sentence to the appellant vide
impugned judgment, the trial Court has properly appreciated the evidence available on
record.
For the above reasons, the instant appeal is dismissed .
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