2011 Y L R 29
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
GHULAM JALLANI ----Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 41 of 2005, decided on 9th August, 2010.
Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c), 21 & 22 ---Possession of narcoti cs---Appreciation of evidence ---Accused
contended that neither the Investigating Officer was competent to investigate the case nor did
he visit the place of occurrence ---Validity ---Naib Risaldar was duly ordered by the Judicial
Magistrate to conduct the pr oceedings which did not suffer from any illegality unless maid
fide of the Investigating Officer was established ---No mala fide was established against the
prosecution or Investigating Officer ---Accused did not deny the ownership of the vehicle or
the drum s from which the contraband material was recovered ---Accused had not stated that
he was transporting the said drums to deliver the same to anyone ---Material recovered from
and articles owned by the accused established that he was in conscious possession of the
same ---No material contradiction was pointed out in prosecution case ---Trial Court rightly
assessed the material on record ---Sentence awarded to the accused was commensurate with
the seriousness of his offence ---Appeal was dismissed in circumstances.
Amanullah Kanrani and Miss Saima Jamal for Appellant.
Zahoor Ahmed Shahwant, Special Prosecutor A.T.A. for the State.
Date of hearing: 17th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J.---The instant appeal has been filed by appellant
with averments that F.I.R. No.18 of 2004 of Levies Thana Taftan was registered on 17 -
6-2004, wherein he was booked along with three other persons for commission of the
offence of recovery of 19 kilograms of heroin powder, which was allegedly recovered
from th e vehicle driven by him. The trial was conducted and he was convicted of the
charge, while sentenced to suffer imprisonment for life with fine of Rs.100,000, in
default have to suffer further imprisonment for one year, through judgment made on 28 -
2-2005 by Special Judge/Sessions Judge, Noushki. He being aggrieved of the
punishment awarded to him filed instant appeal seeking setting aside of impugned
judgment thereby his acquittal of the charge on grounds that the trial Court failed to
consider provisions co ntained in section 22 and section 21 of Control of Narcotics
Substances Act, 1997, which though are mandatory in nature, but violated in present
case. Further, despite the admission of Investigation Officer that he was not competent
to investigate the case trial Court failed to consider this aspect while wrongly assumed
that the investigation proceedings were conducted by Major Sahib/complainant.
Furthermore, the investigation is not properly conducted in present case, while
provisions of section 156, Cr.P. C. are violated, which otherwise are mandatory in
nature. The plea taken in defence by him, which is also supported by the material
present on record, is also not considered by the trial Court.
As per record F.I.R. No.18 of 2004 Police Station Levies Taf tan District Chagai was
registered on 17 -6-2004 at 19 -30 hours on report of Major Muhammad Umar Farooq,
with averments that during routine patrolling they apprehended four persons along with
two vehicles, while from vehicle Siapa, Registration No. Nil, eng ine No.Z:24 -404385,
chassis No.PL 140 -B65357 suspected material/heroin weighing 19 -kilograms was
recovered, while the other vehicle was Toyota Hilux Registration No.C1 -2366, engine
No.34 -0041214, chassis No.YN57 -061530 from which one satellite phone bearin g
No.IME1 -44922194809650 was recovered, which was going ahead of other vehicle
from where suspected material was recovered, the second vehicle was guiding the other
vehicle. The four persons who were apprehended were named as Bashir Ahmed son of
Muhammad R amzan, Zahoor Ahmed son of Abdul Wahid, Ghulam Jillani son of Ghulam
Sarwar and Shabbir Ahmed son of Abdul Samad. On registration of the case,
investigation was made; on completion hallan was submitted against all the four
persons. After submission of chal lan, before framing of charge an application filed by
accused Shabbir Ahmed with contention that as at time of his arrest he was not of 18
years, thus his case falls within purview of section 2(b) of Juvenile Justice System
Ordinance, 2000, thus required t o be tried separately as per section 5 of the Ordinance.
The trial Court through order dated 7 -9-2004 come to the conclusion, thereby declared
the said accused Shabbir Ahmed as minor, while directed for submission of challan to
this extent separately. It i s further apparent from record that the remaining two accused
persons namely Bashir Ahmed and Zahoor Ahmed during course of trial also before
framing of charge moved application under section 265 -K, Cr.P.C. praying for their
acquittal, as on basis of mater ial, present on record, no case was made out against them.
This application was also allowed by the trial Court through order made on 7 -9-2004,
whereby they were acquitted of the offence.
Charge was framed only against present appellant on 28 -9-2004, as the appellant/
accused denied the same and claimed trial, whereupon four witnesses appeared on
behalf of prosecution and got recorded their statements. While in defence the appellant
only produced one witness and also got recorded his own statement on oath . On
completion of trial the court finding him guilty of the charge, thus punished him for the
offence through judgment dated 28 -2-2005, which is presently impugned before this
court.
Learned counsel for the appellant submitted written arguments, while r elied on the
same. According to him it has not been mentioned in F.I.R. that the alleged narcotics
was recovered from exclusive possession of the appellant. Further, the prosecution
evidence did not disclose that any sample was taken from the contraband. T he presence
of defence witnesses at the spot was not denied by P.W. Further, this fact is also
admitted that recovered narcotics was not scaled at the site, while no memo. of recovery
was prepared at the spot. The recovered narcotics also remained in posse ssion of F.C. till
date of its production in court. It is further his arguments that P.W.4, the Investigation
Officer, admitted that he was not competent to make investigation, further he was called at
fort by Kharan Rifles and all proceedings were held in the fort. He further admitted that no
recovery was effected from person of the appellant. P.W.4 also admitted that he did not
visit the place of occurrence, nor prepared the site plan. In view of these admissions as
all the proceedings were conducted at f ort and Expert's Report was also procured by
F.C, being the interested party, thus these facts make the prosecution case doubtful, the
benefit of the same is to be extended in his favour. The learned Prosecutor General
reverted the arguments made by the co unsel for the appellant. According to him there
are no contradictions in the statements of prosecution witnesses. Further, there is no
provision in relevant law that the investigation cannot be carried out by a person below
the rank of sub -Inspector.
The learned counsel for the parties are heard, while record is perused. In present case
recovery of 19 -kilograms of suspected material/heroin powder from the vehicle driven
by the appellant is asserted. Charge against the appellant is also framed to said exte nt.
The evidence produced by the prosecution and the defence version taken by the
appellant/ accused, certain facts are appeared to be admitted. The date of occurrence i.e.
17-6-2004, place of occurrence i.e. near Wariachah Landi and time of occurrence i.e .
16-30 hours are asserted which are not disputed by the appellant. As per report Exh.P/1 -
A and as per F.I.R. No.18 of 2004 Exh.P/4 -A at the time of occurrence the appellant
was driving vehicle Siapa with no registration number accompanying co -accused
Shab bir Ahmed, which was stopped by F.C. personnel, and search of the vehicle was
made.. It is also an admitted position that 45 empty drums were loaded on the vehicle
driven by the appellant. It is also not denied by the appellant that he is not the owner of
said vehicle. Admittedly he did not possess driving license, nor title deeds of the
vehicle. His arrest from the spot along with three co -accused and bringing them to fort
of F.C. is also not denied. The only fact which is denied and contested by the appel lant
is recovery of alleged suspected material from his possession, the only fact which
required to be established by the prosecution.
The prosecution witnesses Major Muhammad Umar (P.W.1) and Muhammad Amir
(P.W.3) are eye -witnesses of the occasion. Both the witnesses corroborated statement or
each other. According to them search was conducted by Muhammad Amir (P.W.2) in
supervision of P.W.1 Muhammad Umar. As per statement of these witnesses at first
instance a vehicle Toyota Hilux was stopped, while the Zambad vehicle Siapa reached
there, which was also stopped, the checking was in routine. Further asserted that empty
drums were loaded on the vehicle, on search one drum was found heavy, on suspicion it
was checked, from which 19 packets of heroin were rec overed. This recovery is denied
by the appellant. It is his contention that after his arrest he was told by Levies that heroin
has been recovered from his vehicle. It is further his contention that several vehicles were
stopped at the site, while drums fro m all the vehicles were unloaded and after checking the
same were reloaded on the vehicles. Further, three vehicles were brought to the fort of F.C.
while one was allowed to go and remaining two were retained including his own.
It is the prosecution who has to establish the recovery of narcotics from possession of the
appellant free from reasonable doubt. As per material present on record it is apparent that
after recovery the suspected material along with appellant and named three persons with two
vehicl es were brought to the fort belonged to F.C., whereafter, matter was rep6rted through
report Exh.P/1 -A, whereupon Naib Resaldar Rasool Khan, who appeared as P.W.4.
conducted the proceedings. As per his statement on receiving of report, as Tehsildar was out
of station, he after obtaining sanction from higher authorities, which is produced by him as
Exh.P/4 -B, F.I.R. was registered, while placed the accused persons in Levies Thana Taftan,
the produced narcotics 19 -bags were weighed in front of witnesses, whic h was found to be
one-kilogram each packet, while 10 -grams from each packet was separated for purpose of
chemical examination. Sealed parcels and memo. of recoveries were prepared, statements of
witnesses were recorded. During course of cross -examination h e admitted that after
registration of F.I.R. he was called at fort of Kharan Rifles, while he prepared recovery
memos. in office of the fort, while at time of preparation of recovery memos., the accused
persons were not present. He further admitted that he neither visited the site of occurrence,
nor he prepared the site map.
The recovery of contraband material was admittedly effected by F.C. personnel, which were
handed over to Naib Resalder, who after making of necessary memo. returned the same to
F.C. p ersonnel, receipt was obtained, which is present on record as Exh.P/2 -G. These articles
were produced by the prosecution witness No.2. In view of these material present on record
the recovery has surely effected by the F.0 personnel while F.I.R. was also r egistered on their
report. The Naib Resaldar was duly sanctioned by the concerned Judicial Magistrate to
conduct the proceedings to this extent there is no illegality. The Investigation Officer surely
did not visit the place of occurrence, as admittedly th e F.C. personnel brought the suspected
persons along with recovered material to their fort. The proceedings relating to preparation of
memo. of recovery and making sealed parcels of suspected material were carried out at office
in the fort, that too in abs ence of accused persons. Though the recovery memos. and parcels
were required to be prepared at site. But as the Naib Rasaldar was called, who after obtaining
necessary sanction from concerned Judicial Magistrate started the proceedings after taking
over t he accused persons in custody. In present case as the place of occurrence situated within
territorial jurisdiction of Levies Thana Taftan, as such the officers/officials of concerned
Thana are required to register the case and held proceedings thereon. Thi s was also done in
case of appellant. There seems to be no illegality in it unless mala fide on the part of F.C.
personnel or Levies personnel are established, mere bringing the accused persons and
suspected material at Thana does not vitiate all the proce edings held in the matter.
The appellant raised plea that a third vehicle was also apprehended at the spot, which was
released thereafter, while two, mentioned in F.I.R., were retained. He tried to assert that the
real culprits were released while he was falsely involved in the case. But no evidence has
come on record, which can corroborate the contention raised by the appellant. No mala fides
are established against the prosecution that the contraband material are planted against him
by the complainant o r Investigating Officer.
From the evidence produced by the prosecution it is established that the suspected material,
proved to be heroin as per Exh.P/5 -A was recovered from the drums/cans loaded on the
vehicle driven by the appellant, as nothing contrar y has come on record. He also did not deny
ownership of the vehicle, nor he denied the ownership of 45 drums/cans loaded in his vehicle.
It is nowhere his case that he was only carrying the drums to deliver the same to some one.
As the material was recover ed from his vehicle, also from the articles owned by him this
amounts to be conscious possession of the appellant. Nothing contrary has brought on record.
No material contradiction has been pointed out in prosecution evidence, nor any mala fide or
adverse intention of prosecution is alleged, nor established. There seems to be no reason and
also no material on basis of which it can be observed that the appellant has been falsely
involved in present case.
The trial court has rightly assessed the material pr esent on record and arrived to right
decision. As large quantity of contraband material/narcotics have been recovered from
possession of the appellant, therefore, the sentence awarded to him is also proper and in
accordance with law. The appellant has fail ed to establish any case in his favour for making
interference in the impugned judgment dated 28 -2-2005 which is hereby upheld. Appeal is
dismissed being without merits.
A.R.K./97/Q Appeal dismissed.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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