2010 Y L R 3271
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
Syed ABDUL JABBAR ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 67 of 2006, decided on 18th August, 2010.
Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Benefit of doubt ---High
quantity of narcotic weighing 42 Kgs consisting of 1978 rods and 67 cubes having allegedly
been recovered, sam ples should have been taken from each of the rods and the cubes as per
legal requirement in order to sufficiently prove that the whole material was a narcotic drug ---
Investigating Officer and witnesses of recovery failed to point out the number of rods and
cubes from which samples were taken; such rods and cubes were not separated from the rest
either ---Instead, only small quantity of 100 grams was sent to the Forensic Science
Laboratory ---Witnesses contradicted each other on several points ---Incompetence, negligence
and failure of the investigating agency to fulfil the requirement of law damaged the
prosecution case and raised reasonable doubt as to recovery of the narcotics from the
accused ---Benefit of doubt thus would go to the accused ---Trial Court fail ed to appreciate
evidence and committed material irregularity which destroyed prosecution's case ---Impugned
judgment was set aside and accused was acquitted of the charge.
Baz Muhammad Kakar for Appellant.
Malik Zahoor Ahmed Shahwani, P.G. for the State.
Date of hearing: 10th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The appellant being aggrieved of judgment dated 4 -
4-2006 of Special Judge, under Control of Narcotic Substances Act, 1997, Quetta, whereby
he has been convicted of offence punishable under section 9(c) of Control of Narcotic
Substances Act, 1997, while sentenced to suffer life imprisonment with fine of Rs.50,000, in
default to suffer further imprisonment of three months, preferred present appeal praying for
setting aside of the same and his acquittal of the charge. It is his contention that the trial
Court misappreciated the facts, misapplied the law and drew conclusion which is contrary to
law and facts. The contradictions in evidence are material, but not consid ered, while
prosecution failed to prove the case through impartial and independent witnesses. The benefit
of doubt is not exercised in his favour. Furthermore, the facts that sample of recovered charas
was sent to FSL after delay of seventeen days, while a ll the recovered charas was not sent for
analysis, only 100 -grams were sent. Further, the alleged recovered charas was raw, thus the
trial court has no jurisdiction to try the case, were not considered by the trial Court. It is also
his contention that he being less than 18 years of age thus required to be tried by the Juvenile
Court.
During course of arguments the main contention of the learned counsel for the appellant was
that recovery is not proved beyond shadow of doubt. While admittedly no investi gation
proceedings were held at the site. The trial Court failed to consider the contradictions
appearing in statements of witnesses and also the fact that the suspected material was sent to
FSL after delay of 17 days. While in rebuttal it was contended by the learned Prosecutor
General that there is specific evidence on basis of which recovery is proved to be effected
from possession of the accused person. Large quantity of charas has been recovered from
possession of the appellant. Minor contradictions in the statements of witnesses are required
to be overlooked. Further, it has not been suggested from the defence side that the seal
present on parcel containing recovered material was not intact. After hearing the arguments
record is also perused.
As pe r record F.I.R. No.69 of 2005 of Thana Satellite Town, Quetta was registered on 19 -3-
2005 on report of Abdullah Jan S. -I./S.H.O. It has been reported therein that while he along
with other officials were on patrolling duty, on receiving secret information that a person
namely Abdul Jabbar, doing business of narcotics, is present near hotel situated at Bus Adda
and waiting for bus to proceed to Sindh, he along with informer and other police officials
reached at Bus Stop at 7 -00 p.m. and on pointation of the informer apprehended the appellant
holding one black and white coloured bag on his shoulder and one plastic black coloured bag
in his hand, who was trying to escape, on search from both bags baked charas in shape of
rods and cubes was recovered, on countin g rods were 1978 in numbers, while the cubes were
67 in numbers, which were found to be 42 kilo grams on weighing. The recovered charas was
taken into custody; 100 -grams were separated for analysis. Parcels and recovery memo were
prepared. Recovered materi al was sent for analysis, while report of FSL was also received,
which was in positive. On completion of investigation, case was challaned. Charge was
framed on 29 -6-2005, which was denied by the appellant. During course of trial three
witnesses appeared o n behalf of the prosecution, while in defence the appellant neither
recorded his own statement on oath, nor produced any witness. On completion of trial the
court finding him guilty of the charge, thus awarded him sentence through judgment dated 4 -
4-2006, which is assailed in present appeal.
The appellant has raised several grounds while challenging the impugned judgment. It is his
contention that as the charas allegedly recovered is raw, thus the trial Court has no
jurisdiction to entertain the case. D uring course of arguments his second contention was to
the effect that the appellant is less than 18 years of age, thus his case was required to be tried
by the Juvenile Court. While arguing the case the learned counsel for the appellant did not
advance an y arguments on respective points. Apart from the same there is nothing on record
whereby it has been alleged that the recovered charas was raw. Secondly the appellant, while
got examined by the court during trial, deposed his age as 18/19 years, nothing co ntrary has
been produced by him. Apart from the same the appellant never raised any objection to same
effect before trial Court, as such he, at this stage, is not entitled to raise such a plea.
The appellant mostly stressed that the material present on record is neither properly assessed,
nor the contradictions appearing in statements of prosecution witnesses were considered. The
trial Court relied on statements and material produced by the prosecution. Three witnesses
appeared and got recorded their st atements from prosecution side. P.W.1 Abdullah Jan IP is
the complainant, who not only received the secret information, raided and apprehended the
appellant, while recovered the suspected narcotics from his possession. He got prepared the
report/Fard -e-Biyan (&L'2) Exh.P/1 -A, he also prepared the memo of recovery of charas and
other articles, separated 100 -grams from the recovered charas and prepared the parcels. P.W -
2 Ishaque Ali S. -I. is witness of the occasion and also witness of the memo. of seizure. P. W.3
Abdul Aziz S. -I. is the appointed Investigation Officer, who conducted the investigation,
while recorded statements of witnesses and sent the suspected material to FSL for
examination. All the three witnesses were members of the police party, which was on patrol
duty, which conducted raid on secret information and apprehended the appellant, from whose
possession the alleged charas was recovered. As per their statements on 19 -3-2005, when
they were on patrol, they got information about transportation of narcotics and presence of
the accused person namely Abdul Jabbar at road, who was waiting for the bus. They reached
the site and on pointation of informer apprehended the appellant, who on having their glance,
was trying to escape. On his search from bag a nd shopping bag in his possession baked
charas in shape of bundles containing rods and cubes were recovered. On counting the total
numbers of rods were 1978 and cubes were 67. While from recovered charas 100 -grams were
separated for examination. Two separa te parcels were prepared. P.W.1 during course of
cross -examination deposed that the recovered material was weighed in balance, which was in
their custody, while no weights were used, as the same were not required. He further asserted
that from whole of rec overed material small pieces were separated for purpose of analysis,
but he was unable to describe the total number and weight of each piece so recovered. P. W
.2 gave statement corroborating statement of P.W. but during course of cross -examination he
depo sed that the balance which was used for weighing was balance of such a nature which is
ordinarily used in shops, while weight of 5 and 2 kilograms were used for the purpose. But he
was unable to disclose that the sample was obtained from how many rods and cubes, also
unable to describe separately the number of the samples taken from rods and from cubes.
According to him memo. of recovery was prepared by Abdullah Jan. P.W.3 Abdul Aziz is
Investigation Officer only deposed about recording of statements of wit nesses under section
161, Cr.P.C, sending of parcel to FSL, while obtaining of report from FSL. During course of
cross -examination he also deposed that the balance which was used was ordinary in nature as
used in shops for purpose of weighing, while weight s of 5 and 10 kilo grams were used. He
was unable to depose that from how many rods samples were taken for analysis, but added
that from several rods material was separated. Further, deposed that the sample was taken
from all the cubes. He admitted the
suggestion that the cubes which were produced before the court some of them are complete,
having no mark of separating of pieces. He also unable to disclose that how many pieces
were separated, nor even their weight. The Report submitted after examination of suspected
material by Forensic Science Laboratory is produced as Exh.P/3 -B. The perusal of the same
reveals that parcel was received on 4 -4-2005 containing 100 -grams of suspected material. On
analysis it was found to be charas Baked.
The appellant in defence though neither recorded his statement on oath, nor produced any
evidence. But during examination made by the court, took plea that as Abdullah Jan (P.W.1)
is his neighbour and there was fighting between children, that is why the witnesses falsely
deposed against him, on instance of said Abdullah Jan S.H.O. who has personal grudge with
him. It was also suggested to P.W.2, who showed his ignorance. While P.W.3 on suggestion
denied that he on instigation of S.H.O falsely involved him in present case. P .W.1, the S.H.O.
also denied the suggestions made in same respect. Nothing has been placed on record from
which it can be established that both P.W.1 and the appellant are residents of same area
having dispute and due to the same he has been falsely involv ed in the case.
Apart from the defence plea taken by the appellant during course of trial, the prosecution has
to establish that contraband article i.e. charas had been recovered from possession of the
appellant. All the three witnesses though in their statements supported each other in respect
of fact of effecting of recovery from the appellant. But they surely differ and contradicted
each other about the nature of balance used for weighing the recovered material, as per P.W.1
the balance which was use d was with hook and without weights which were not needed.
While on the other hand as per P.W.2 and P.W.3 the balance was ordinary which is used in
shops, while weights of 5 and 10 kilograms were used. Further, as per P.W.2 the recovered
material was weigh ed several times separately. While on the other hand P.W.1, the person
who conducted the proceedings, stated that the recovered material was weighed collectively,
not separately. While as per P.W.3, the Investigation Officer, deposed that as each rod was
not weighed separately, as such he is unable to describe weight of each rod. All the three
witnesses though present at the spot differ with each other on this point, which surely creates
some doubt.
Though it is case of prosecution that out of recovered material, which is shown as 42 -kilo
grams, 100 -grams was separated, which was sent to FSL for analysis. This quantity which
was sent to FSL is also mentioned in the Report, there is no contradiction to this effect. But it
is to be noted that according to prosecution witnesses the recovered charas was in shape of
rods and big cubes, which on counting were found to be 1978 rods and 67 cubes. In the
circumstances it is requirement of law that specimen from each of the rods and cubes was to
be taken, whereafte r, send them for examination. But to the contrary in present case this has
not been done. Though P.W.1 stated that from whole material small pieces were separated for
analysis, but he was unable to describe the numbers of the pieces so separated. While on the
other hand P.W.3, the Investigation Officer, also unable to disclose that from how many rods
the specimen for analysis were separated. Rather he only deposed that from enough rods
material was obtained, he did not disclose the number of such rods from which material was
taken. According to him the pieces were separated from all the cubes, but contrary to the
same it has been observed and also admitted by him that some of the cubes produced before
the court are complete in all respect. He also unable to describe the number of pieces so
separated. From this set of evidence a reasonable doubt appeared, which surely affect case of
the prosecution. Though sending of whole recovered material is not requirement of relevant
law, but samples must have been taken from each rod and also from each cube, which will be
sufficient to prove whole the material as narcotics, but this has not been done in present case.
Rather 100 -grams from allegedly recovered material has been sent for chemical examination
to said extent r eport has been made in positive. But as discussed hereinabove the material was
not taken from whole of the recovered contraband, rather from some of recovered material
samples were taken, that too not specific. Though a huge quantity of narcotics is allege dly to
be recovered, but the investigating agency did not fulfil the requirement of law, rather their
incompetency and negligent conduct surely damage the case, which is unfortunate.
In addition as per P.W.1 after effecting of recovery written report a nd memo. of recovery
were got prepared by Abdul Aziz A.S. -I. i.e. P.W.3, while sitting in the vehicle. But contrary
to the same as per P.W.2 the seizure memo. was written by Abdullah Jan S.H.O. i.e. P.W.1,
while it was prepared at site at land. Both the wi tnesses contradicted each other in this Point
also. Rather P.W.3 Abdul Aziz is completely silent to this effect.
Keeping in view the above mentioned facts a reasonable doubt appeared, which makes the
recovery of narcotics from possession of appellant d oubtful, which was required to be
considered and benefit of the same was required to be exercised in favour of the accused
person. But the learned trial Court failed to consider these aspects of the case, rather
considered them minor contradictions, thus o f less value. Admittedly the allegedly recovered
material as a whole was not sent for chemical examination, nor the samples were obtained
from whole material as per requirement of law, this irregularity not only destroys the case of
the prosecution, but al so creates reasonable doubt, benefit of which is to be exercised in
favour of the accused person to meet the ends of justice.
In view of above discussion the appeal is accepted. Impugned judgment dated 4 -4-2006 is
hereby set aside. Appellant Syed Abdul Jabbar son of Syed Hazrat Ali is acquitted of the
charge under section 9(c) of Control of Narcotic Substances Act 1997 pertaining to F.I.R.
No.69 of 2005 Police Station Satellite Town Quetta. He be released at once, if not required in
any other case.
A.R.K./98/Q Appeal accepted.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.