2012 YLR 2288
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Abdul Qadir Mengal, Mengal, JJ
ABDUL MALIK ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.163 of 2011, decided on 28th June, 2012.
(a) Control of Narcotic Subst ances Act (XXV of 1997) ---
----S. 9(c)---Possession of narcotics ---Appreciation of evidence ---Allegation against the
accused (appellant) was that he was searched at a Levies check post and 13 packets of
charas (narcotic), weighing 13 kilograms, were foun d hidden in the secret cavities of his
vehicle ---Trial Court convicted the accused under section 9(c) of the Control of Narcotic
Substances Act, 1997 ---Contentions of the accused were that it could not safely be said
that 100 grams sent for analysis were s ecured from each slab of narcotic; that samples were
sent for analysis after a delay of two and a half months; that the allegedly recovered
narcotic was not weighed on the spot; that the recovery memos were not prepared on the
site, and that the accused ha d purchased a ticket to travel in the apprehended vehicle, which
belonged to a company -Validity -Accused had failed to produce any ticket or person of the
alleged company which owned the vehicle ---Prosecution had established the fact . that the
accused was d riving the vehicle alone, which fact was corroborated by the statement of
the prosecution witnesses --Accused had failed to point out any ill -will or animosity towards
him---All prosecution witnesses consistently stated that 13 packets, consisting of rods a nd
slabs, were recovered from the possession of the accused and from each packet a total of
100 grams was collected for analysis ---Samples were separated through memo in the
presence of Levies officials, who handed it over to the Chemical Expert ---Mere sen ding
of samples for analysis with a delay was no basis to let the culprit go scot -free-Although
preparation of recovery memos and other proceedings on the site excluded the possibility
of false implication, but, in the present case, the incident took place at a far -flung check -
post, in such circumstances, shifting of the vehicle along with the narcotic to a Levies
station for preparation of memo did not five the impression that the accused had been
implicated in a false, frivolous case, particularly when th e possession of narcotic and
seizure of the vehicle had been established by the prosecution ---Appeal was dismissed
and judgment of the Trial Court was maintained.
PLD 2004 SC 856 distinguished.
YLR 2005 SC 2805 ref.
(b) Control of Narcotic Substanc es Act (XXV of 1997) ---
----S. 9---Possession of narcotics ---Appreciation of evidence ---Mere delay in sending
samples for analysis ---Effect ---Simply sending of samples for analysis with a delay was
no basis to let the culprit go scot -free.
Muhammad Qah ir Shah for Appellant.
Abdul Sattar Durrani Addl: P.G. for the State.
Date of hearing: 11th June, 2012.
JUDGMENT
ABDUL QADIR MENGAL, J. --This appeal under section 48 of the Control of Narcotic
Substances Act, 1997 has been filed against the judgme nt dated 5th July, 2011 passed by the
Special Judge, CNS Khuzdar, whereby the appellant wag convicted and sentenced under
section 9(c) of CNS Act, 1997 to suffer life imprisonment with fine of Rs.100,000, in default
whereof the appellant was directed to un dergo S.I. for six (06) months with benefit of section
382-B, Cr.P.C.
2. Brief facts of the present appeal as appearing from the case record are that the Levies
officials of Chuk Check Post Tehsil Khuzdar received an information that a 2.0D Car bearing
Registration No.AQG 981 proceeded from Quetta side towards Karachi, in which a huge
quantity of illicit charas was shifting. . After receiving information the officials of the Check
Post started surveillance to the vehicles passing through the Highway road. It was 2.30
(night) when the relevant 2.OD Car AQG -981 was reached, the same was stopped by the
Levies officials and the driver was known as Abdul Malik son of Kargar, caste Achakzai,
resident of Chaman. He was searched and his identity card was also foun d present with him.
On search of the vehicle 13 packets lying underneath in hidden cavities of vehicle so as under
the seats of 2.0D Car. The 13 packets of charas consisting upon rods and slabs weighing 13
kilograms were taken into possession, and F.I.R. w as lodged, total 100 gram -Charas, was
separated for analysis, which later on sent for chemical report. After registration of the F.I.R.
and on completion of the investigation, the matter was sent to Special Judge, CNS Khuzdar
for proceedings in accordance with law. The Special Judge, CNS Khuzdar on 21st March,
2011 read over the charge to the appellant/convict, to which appellant/ convict pleaded not
guilty and claimed trial.
3. The Special Judge, CNS Khuzdar recorded evidence of prosecution witnesses (P. Ws.),
which consisting upon P.W.1, Ali Ahmed Naib Tehsildar, P.W.2, Hidayatullah Hawaldar,
P.W.3, Shakeel Ahmed Naib Risaldar Levies, P.W.4 Muhammad Umer Tehsildar, the
Investigating Officer, and whereafter the statement of appellant was recorded by the le arned
Special Judge, CNS Khuzdar under section 342 Cr.P.C; so as on oath under section 340(2),
Cr.P.C.
4. The appellant produced two defence witnesses (DWs) in support of his contention that he
on the day of incident i.e. 6th February, 2011 from Jhalawan Company sat along with four
other passengers in a 2.0D Car, and on their reaching at Chuk Levies Check Post, the Levies
officials inquired about their identity cards, however, the Levies officials caught hold of him
on the pretext that his identity card w as fake and then later on implicated him in the present
matter.
The DW -1, Daulat son of Daru, Caste Achakzai stated that on 6th February, 2011 he was
accompanied with appellant Abdul Malik in Quetta, as he had to proceed Karachi, first they
tried to get a ticket of a Coach, however, when they failed then they went for ticket of 2.0D
Car, as such, Abdul Malik proceeded along with other passengers, therefore, there is no
question of recovery of charas from Abdul Malik.
The second witness was Abdul Khaliq son of Abdul Jabbar, caste Achakzai, he also narrated
on the same line as has been stated by DW -1 Daulat, that they got ticket from Jhalawan
Company for the appellant of a 2.0D Car, as such, later on they came to know that Abdul
Malik was apprehended by th e Levies officials.
5. We have heard Mr. Muhammad Qahir Shah, Advocate for the appellant and Mr. Abdul
Sattar Durrani, Addl: Prosecutor -General for State.
6. Learned counsel for the appellant mainly contented that there is no mention that the illicit
100 grams, which was separated. for analysis was taken from the rods or slabs of charas, as
admittedly the material was consisting upon rods and slabs, so being it cannot be safely said
that the 100 grams was secured or separated from each of the slab or ro d, thus the appellant
cannot be convicted for the whole material in view of the dictum of the higher court. In this
connection learned counsel relied on PLD 2004 Page 856.
The learned counsel further argued that the material was sent for analysis conside rably
delayed i.e. two and a half months, so being no reliance can be made on such report on
account of its delayed analysis, so therefore, the prosecution case has become doubtful, as
such, the appellant is entitled to be acquitted from the charge. In thi s connection learned
counsel supported his view from the YLR 2005, Page 2805, Quetta. The relevant authority is
reproduced here as under:
"----S. 9(c)---Appreciation of , evidence ---No evidence was available on record to
show whether the samples . were dr awn from the alleged recovered material or when
the same were sealed and who sealed them ---Record also did not show as to when the
samples were obtained, before whom the same were obtained and in whose custody
the same remained , for more than fifteen days ---Said samples were even not shown to
have been obtained from each packet of the recovered material ---Person who had sent
the samples to Chemical Laboratory for analysis was not known ---No "Fard" was
available on record for taking into possession the sampl es for sending the same, to
Chemical Expert --Accused was acquitted in circumstances. "
7. On contrary the State counsel strenuously opposed the contention of the learned counsel
for the appellant and stated that the prosecution has successfully establish ed the case against
the appellant/ convict and it is the duty of the appellant to show that he has been falsely
implicated in the instant matter. The counsel for appellant in that connection, whatever has
stated, same has no substance and the story which h as been presented by the defence side is
also concocted one and gives no benefit to the appellant/convict.
8. After hearing both the sides, we have perused the record of the case. At the very outset we
may mention that the defence which was put forth fro m the side of the appellant, having no
any ring of truth. Admittedly the appellant has failed to produce any ticket of the alleged
Jhalawan Company, so as also has failed to produce any member of the alleged Jhalawan
Company, which showing that the vehicle , which was detained in the alleged case belong to
the company, and the appellant travelled through the company's vehicle from Quetta to
Karachi. As such, without any deep appreciation the contention of the appellant seems not
reliable and same cannot be a cted upon. Whereas no doubt under the provisions of Narcotic
Substances Act, 1997 the primary duty or burden lies upon the prosecution to prove that the
alleged material was taken from the possession of the appellant/accused, which in our view in
the prese nt case has been successfully established by the prosecution and in case of proving
primary duty or shifting burden to accused then under the provisions of section 29 of the
Control of Narcotic Substances Act, 1997 it is the duty of accused to show any exc use in
respect of the possession of the said illicit contraband material as the same is evident from
section 29 of Control of Narcotic Substances Act, 1997 which for the sake of facility has
mentioned here as under: --
"29. Presumption from possession of illicit articles. ---In trials under this
Ordinance, it may be presumed, unless and until the contrary is proved that the
accused has committed an offence under this Ordinance in respect of--
(a) any narcotic drug, psychotropic substance or controlled sub stance;
(b) any cannabis, coca or opium poppy plant growing on any land which he has
cultivated;
(c) any apparatus specially designed or any group of utensils specially adapted for the
production or manufacture of any narcotic drug, psychotropic substa nce or controlled
substance; or
(d) any materials which have undergone any process towards the production or
manufacture of narcotic drug, psychotropic substance or controlled substance or any
residue left of the materials from which a narcotic drug, psy chotropic substance or
controlled substance has been produced or manufactured, for the possession of which
he fails to account satisfactorily."
9. Thus in the light of above, we are of the view that the evidence, which has come from the
side of the prose cution has established this fact that the appellant at the night of incident was
driving alone the vehicle 2.0D C ar hearing Registration No.AQG -981, which was stopped
by the Levies officials of Chuk Check Post. In this connection the statement of all the P .Ws.,
P.W.1 Ali Ahmed Naib Tehsildar, P.W.2, Hiclayatullah Hawaldar Levies and P.W.3 Shakeel
Ahmed Naib Risaldar Levies are not only corroboratory, consonant, but at the same time
showing the true picture of scene of the offence. There is no material, whic h could show any
will or animosity towards the appellant. The appellant himself also has failed to point out any
ill will or defect in the prosecution evidence., Thus in the light of the above when adverting
to the objections of the learned counsel that no material has been recovered from each of the
slab or rod, as such, on account of this prosecution case being defective, and the appellant
cannot be convicted for the whole material. But on our thorough examination of the record
we see no substance in the objection of the learned counsel. Admittedly all the P.Ws.
consistently have stated that 13 packets consisting upon rods and slabs were recovered from
the possession of the accused and out of every packet, total 100 ( grams was collected, so
being it means that from each of the packet, the I.O. has taken or collected material for
analysis. Thus the authority PLD 2004, SC Page 856 having no relevancy with the facts of
the present case as such, the same is ignored ,. Whereas objection of learned counsel that
material was sent by the I.O. about two months after the recovery Aor analysis, therefore on
this ground, the analysis report is not reliable and appellant is liable to be acquitted of the
charge being giving benefit of doubt. We have also given our anxious thought to this
objection and are of the view that it also having no relevancy on the facts of relevant case. As
admittedly in the present case, the 100 grams of charas separated through memo Exh.P/2 -B
by the I.O. in presence of Hidayatu.11ah Constable Le vies, so as in the presence of Nasrullah
Piyada Levies. The report of Chemical Expert Syed Abdullah Shah shows that the said
material received by him through Deputy Commissioner Khuzdar by hand through a Levies
official, in view thereof no question remains that when the samples were obtained, and who
sent it to the Chemical laboratory for analysis or get the report, as such, being above this
version of learned counsel having no weight, therefore, same is repelled. However, it may not
be out of place to ment ion that simply sending of material with delay for analysis in our view
makes no point on the basis of the same a culprit to be left scot -free. Again we may mention
that law has not fixed any particular quantity of recovered material to be sent as a sample for
chemical analysis, whereas in the present matter it appears that 100 grams charas as a sample
collected from each of the packet. Thus in the above discussed circumstances we are of the
view that this objection is not a' valid ground to benefit the app ellant/accused.
10. Learned counsel again stressed that material was not weighed on spot so as the recovery
memos were not prepared on site, as same is evident from the proceedings of the I.O. No
doubt legally preparation of the recovery memos and other proceedings on F site exclude the
possibility of false implication of an innocent person, however, this is the rule of caution for
which the courts usually insisted, whereas in the instant case Levies officials having no any
such ability to tackle such sit uation on afar -flung check post, as such, in such situation
shifting of the vehicle along with contraband charas to Levies Thana and preparation of the
memos in no way giving impression that appellant has been implicated in a false, frivolous
case, particu larly when the possession of contraband articles and seiner of the taxi I has been
established by the prosecution. With the above discussed circumstances, we are of the view
that the judgment dated 5th July, 2011, passed by learned Special Judge CNS, Khuzd ar is
proper and having no defect: As such, same is maintained. The appeal is dismissed.
MWA/55/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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