2012 Y L R 2686
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
MUHAMMAD AKBAR ---Appellant
versus
THE STATE ---Respondent
Criminal Appeal No.284 of 2 011, decided on 9th August, 2012.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Minor dis -
crepancies/contradictions in evidence ---Prosecution witnesses (police officials) remai ning
consistent with each other with regard to material details ---Tampering of samples not alleged -
--Effect ---Accused, who was a passenger in a bus was found in possession of 6 kilograms of
charas ---Trial Court convicted and sentenced accused under S. 9(c) of Control of Narcotic
Substances Act, 1997 ---Contentions of accused were that prosecution evidence was full of
contradictions and discrepancies; that samples were sent to Chemical Expert after a delay of
five days, and that only 30 grams of recovered sub stance was sent for chemical analysis,
therefore, at the most sentence against him could be recorded with regard to 30 grams of
charas ---Validity ---Discrepancies and contradictions in statements of prosecution witnesses
(police officials) were minor and co uld be ignored since all witnesses remained consistent
with each other on the point of date, time, place of arrest , recovery of charas from accused
and its dispatch to Chemical Examiner ---Credibility of prosecution witnesses (police
officials) could not b e questioned without any serious allegation of their malice against the
accused ---Accused was arrested on the spot along with charas and Chemical Examiner's
report found the recovered substance to be charas ---Delay in sending incriminating articles to
Chem ical Expert for analysis could not be treated fatal in the absence of objections regarding
the same having been tampered with or manipulated ---Accused in the present case never
contended during or before trial that samples had either been replaced or were tampered with -
--Sending whole of the recovered narcotic substance to Chemical Examiner was not the
requirement of law, and only a small quantity was sufficient to prove that entire recovered
material was contraband substance ---Appeal was dismissed, in cir cumstances.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
---S. 9---Possession of narcotic ---Appreciation of evidence ---Evidence ---Police officials as
witnesses ---Scope ---Police officials were as good witnesses as public witnesses until and
unless the defence established specific enmity or malice against them.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
---S. 9---Possession of narcotic ---Appreciation of evidence ---Delay in sending samples to
Chemical Expert ---Scope ---Delay i n sending incriminating articles to Chemical Expert for
analysis could not be treated fatal in the absence of objections regarding the same having
been tampered with or manipulated.
(d) Control of Narcotic Substances Act (XXV of 1997) ---
---S. 9 ---Possession of narcotic ---Appreciation of evidence ---Samples sent to Chemical
Expert ---Quantity ---Scope ---Sending whole of the recovered narcotic substance to Chemical
Examiner was not the requirement of law, and only a small quantity was sufficient to prove
that entire recovered material was contraband substance.
Sohail Ahmed Rajput for Appellant.
Atique Ahmed Khan, Deputy Prosecutor General for the State.
Date of hearing: 31st July, 2012.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. ---This Criminal Appe al under section 48 of
the Control of Narcotic Substances Act, 1997 is directed against the impugned judgment
dated 19th October, 2011, passed by the learned Judge, Special Court (C.N.S), Quetta,
whereby appellant was convicted under section 9(c) of the Co ntrol of Narcotic Substances
Act, 1997 and sentenced to imprisonment of five years and to pay fine of Rs.50,000 or in
default to suffer simple imprisonment for six months with benefit of section 382 -B, Cr.P.C.
2. Brief facts of the case are that on 26th July, 2010 complainant Abdul Aziz Buzdar,
S.I. along with his subordinate staff was checking the vehicles at Baleli Check Post, Quetta at
about 2:00 p.m. a passenger Mazda Bus was coming from Khuclak side was stopped and
found a passenger in suspected con dition sitting on the seat near the rear door of the Bus,
having a white colour sack in his lap. He was deboarded from the Bus and detail checking
was carried out, which resulted in recovery of a sack which was opened and on search two
packets baked Hashi sh, each packet containing 3/3 slabs, each slab containing one kgs.; total
six kgs. baked Charas was recovered. The accused person disclosed his name as Muhammad
Akbar son of Muhammad Siddique, Caste Awan, resident of Kasi Road, Shaldara. For
sample, the complainant separated 30 grams from each slab and prepared sealed parcel. The
case property was taken into possession vide memo; Exh.P/1 -A and then draft Murasila (Exh.
P/1-B) was sent to the Police Station for registration of formal F.I.R. against the
accused/appellant and he was arrested.
3. After completion of necessary investigation, challan of the case was submitted before
the trial Court for trial, where charge was framed under section 9(c) of C.N.S., Act, 1997
against the convict/ appellant to whic h he pleaded not guilty and claimed trial. Whereafter the
prosecution in order to prove the charge and to substantiate the allegation levelled against the
appellant, produced as many as three witnesses. Summary of the prosecution evidence for
just and prop er appraisal is reproduced as under: --
Abdul Aziz, S.I complainant appeared as P.W.1 and furnished ocular account of the
prosecution case. He produced Murasila as Exh. P/1 -B and recovery memo; as Exh. P/1 -A.
Muhammad Haneef, A.S. -I., appeared as P.W.2 a nd narrated the facts of the case and
produced recovery memo; as Exh. P/1 -A. Syed Tasleem -ul-Hassan, S.I, Investigation Officer
of the case appeared as P.W.3 and produced copy of F.I.R. as Exh. P/3 -A, F.S.L. Report as
Exh.P/3 -B and supplementary challan as Exh.P/3 -C respectively.
4. On conclusion of the prosecution evidence, the appellant was examined under section
342, Cr.P.C. wherein he denied the charge and professed innocence and false implication in
the case. The appellant also recorded his statement on oath as required under section 340(2),
Cr.P.C, however, did not produce evidence in his defence. The learned trial Court after
hearing the parties and appraising the evidence convicted and sentenced the appellant as
stated above. Feeling dissatisfied w ith his conviction and sentence, the appellant preferred
this appeal.
5. The learned counsel for the appellant contended that the prosecution case is full of
material contradictions, grave discrepancies and the judgment is the result of misreading and
non-reading of the evidence available on record. He further contended that neither the driver
nor the cleaner of the Bus was associated in the alleged recovery as witness. He further
contended that only 30 grams of alleged recovered substance was sent to the Chemical
Examiner for analysis, therefore, at the most sentence could be recorded against the appellant
with regard to 30 grams of Hashish. He further argued that said sample was sent to the
Chemical Examiner with a delay of more than five days; therefore , the appellant is entitled to
be benefit of doubt, as such, may be acquitted of the charge levelled against him.
6. On the other hand learned Deputy Prosecutor -General argued that prosecution had
fully established its case against the appellant through ocular account as well as recovery and
the positive report of the Chemical Examiner.
7. We have heard learned counsel for the appellant as well as the Deputy Prosecutor -
General and have gone through the record of the case with their valuable assistance. The
contention of the learned counsel for the appellant that the prosecution case is full of material
contradictions, grave discrepancies, therefore, no reliance can be placed on the said evidence,
is belied by the statement of P.Ws. namely Abdul Aziz, S.I , Muhammad Haneef, S.I and
Syed Tasleem -ul-Hassan, S.I. The learned trial Court on appraisal of evidence of the
aforesaid prosecution witnesses has held that the discrepancies and contradictions in the
statements of P.Ws. are minor, which can be ignored in the circumstances of the case
particularly on account of lapse of time between recovery and evidence; moreover, the
credibility of P.Ws. named above cannot be questioned without any serious allegation of their
malice against the accused. The appellant was arrested on the spot along with the contraband
Charas and as per report of the Chemical Examiner (Exh.P/3 -B) the same was found to be
baked Charas Cannabinoids. The contradictions in the statement of P.Ws are of no
consequence because all the witnesses re mained consistent with each other on the point of
date, time, place of arrest, recovery of Charas from the possession of appellant and its
dispatch to the Chemical Examiner, therefore, their testimony could not be shattered during
the test of cross -examina tion. Even otherwise, the police officials are as good witnesses as
public witnesses until and unless the defence establishes specific enmity or malice against
them.
8. As regards the argument of the learned counsel for the appellant regarding sending th e
sample with delay, there is no time limit in C.N.S. Act, 1997. Even otherwise, delay in
sending the incriminating articles to the Chemical Expert for analysis could not be treated
fatal in the absence of objections regarding the same having been tampere d with or
manipulated. In the instant case it has never been the stance of the appellant during the trial or
even before this Court that the samples had either been replaced or tampered with, therefore,
the arguments of learned counsel are also devoid of a ny legal force.
9. Coming to the last arguments of the learned counsel for the appellant that only 30
grams of the recovered Charas was sent to the Chemical Examiner and the appellant at the
most could be convicted for the said quantity, this argument of the learned counsel is also
devoid of any legal force for the reason that it is no where the requirement of law to send the
whole of the narcotic substance to the Chemical Examiner, only a small quantity is sufficient
and would be enough to prove that ent ire recovered material was contraband substance. The
learned counsel for the appellant has failed to point out any illegality, irregularity, perversity,
non-appraisal of evidence or jurisdictional defect in the impugned judgment, which is
accordingly maint ained.
10. Resultantly, we find no substance in this appeal, which is hereby dismissed.
MWA/77/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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