2011 Y L R 2169
[Quetta]
Before Ghulam Mustafa Mengal and Muhammad Hashim Khan Kakar, JJ
ABDUL JABBAR---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.232 of 2009, decided on 23rd `June, 2011.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Possession and trafficking of narcotics ---Appreciation of evidence ---Prosecution
witnesses were cross -examined at length, but nothing had come on record favouring accused or
materially affected the case of pr osecution to believe that charas was not recovered from the
vehicle, which was being driven by accused at the relevant time---Prosecution had proved its
case in respect of recovery of charas from the vehicle which was in possession and under control
of the accused ---Prosecution witnesses, however, in their account had stated that the charas,
recovered front accused was in shape of rods, out of which 10/10 grams charas from 10 packets,
in the shape of rods, were sent to the Chemical Expert for analysis, meaning thereby that initially
only 100 grams of charas was sent to the expert for analysis ---Nothing was available on record
showing that samples for examination by Chemical Examiner were taken out from all the packets
or each rod to prove that entire rods/pa ckets contained charas ---Samples were separated and sent
to the Chemical Expert after lapse of about seven months after the arrest of accused ---Nothing
had come on record, which could show that during such period of time where the charas was
lying, whether in the Customs Intelligence Office or somewhere else ---Prosecution was duty
bound to place on record the entire evidence in order to prove its case against accused effectively
beyond any shadow of doubt, but evidence, brought on record, clearly missed the chain ---Trial
Court had wrongly placed reliance upon the report of Chemical Expert which was not
admissible piece of evidence being procured and tendered illegally ---Prosecution had proved its
case against accused only to the extent of 100 grams charas in circumstances ----Accused being
in custody since 13th January, 2008, conviction and sentence awarded to accused be treated as
already undergone.
1993 PCr.LJ 2287 (FSC) rel.
PLD 2004 SC 858 ref.
(b) Criminal Procedure Code (V of 1898) ---
---Ss. 156 & 173---Control of Narcotic Substances Act (XXV of 1997), S.9(c) ---Possession and
trafficking of narcotics --- Investigation of case by Police or Customs Authorities ---Power of
Police to reinvestigate the case ---Police or Customs Authorities were not statutorily prohibited
from investigating a case as many times as they chose; and could file a fresh challan in the court
as a result of subsequent investigation or events --Powers of Police to reinvestigate the case or
submit subsequent challan, were unlimited; and no law existed which precluded the Police from
reinvestigation of case ---Any document, which, the prosecution intended to rely upon, should be
submitted before the court through proper and subsequent challan as envisaged under S.173 of
Cr.P. C.---If the law required something to be done in a specific manner, it should be done as law
required and departure was not permissible ---Police or any other Investigating Agency, had no
unfettered power to place a document on record in gross violation of the prescribed manner.
(c) Criminal Procedure Code (V of 1898) ---
----S. 265- C---Supply of statements and documents to accused ---Object of S.265- C, Cr.P.C. ---
Object of S.265- C, Cr.P.C. appeared to be to meet the vacuum created by the abolition of
commitment proceedings and to make available to accused all the available evidence, which the
prosecution had for the unfolding of the true case bef ore the court ---Purpose, was that accused
could know before he was sent up to stand trial in a charge punishable with death or
imprisonment for life as to what evidence he would have to meet at the trial in order to take up a
proper defence plea ---Interval of seven days emerged under S.265- C, Cr.P.C., was also
significant, because it was meant to give accused sufficient time to study the allegations against
him and to prepare his plea in defence.
Muhammad Qahir Shah for Appellant.
Chaudhry Mumtaz Yousa f, Standing Counsel for the State.
Date of hearing: 31st May, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---By this Criminal Appeal, judgment dated 29th
June, 2009, passed by Special Judge, Control of Narcotic Substances Act, 1997, Quetta, has been
challenged, whereby appellant Abdul Jabbar was convicted under section 9(c) of the Control of
Narcotic Substances Act, 1997 and sentenced to suffer life imprisonment RI with fine of
Rs.100,000, in default whereof to further undergo SI for one year, wit h benefit of section 382- B,
Cr.P.C.
2. Mr. Muhammad Qahir Shah, learned counsel for the appellant, contended that the prosecution
has failed to prove its case against the appellant and the trial Court on misreading and wrong
conclusion of evidence convic ted him. It was next argued that, out of alleged 140 packets of
recovered charas, wrapped in plastic bags in rods shape, only 10/10 grams charas from 10
packets were obtained and sent to the expert for chemical analysis, thus, at the most, if the
prosecuti on case is taken in toto, the appellant could only be convicted for the narcotic sent to the
expert. He further contended that during course of trial, when the statements of P.Ws. 1 and 2
were recorded, the Investigating Officer, just to fill up the lacuna s, without obtaining Prior
permission of the trial Court, had sent the remaining material to the expert for analysis, which is
not permissible under the law.
3. Chaudhry Mumtaz Yousaf, learned Standing Counsel, appearing on behalf of State, conceded
to the arguments of appellant's counsel and admitted that the narcotic recovered from the
appellant was in shape of rods, out of which, 10/10 grams charas from 10 packets in shape of
rods were sent to the chemical expert for analysis, however, he opposed that the Investigating
Officer has no authority to send the substance after submission of the challan before the Court.
4. We have considered the arguments of learned parties' counsel and have gone through the
record including the impugned judgment. It is the case of prosecution that upon receipt of secret
information, in respect of transportation of huge quantity of narcotics by means of a Toyota
Pickup bearing Registration No.KH -4084 from Chaman to Quetta, by the Director, Directorate
of Intelligence and Inv estigation (FBR), Karachi, a raiding party, under the supervision of Jaffar
Hussain, S.I.O., was constituted, comprising of Ilyas Ahmed, S.I.O., Syed Adnan Kafeel., I.O.,
Qasim Ali Alvi, I.O., driver Niamat Bhatti, Sepoy Abdul Malik and Sobedar F.C. Khair Bakhsh.
It was alleged that on 13th January, 2008, during the course of surveillance, the said vehicle was
intercepted at Baleli Check Post with the help of police and FC authorities. It was further alleged
that on search, secret cavities were found in the vehicle and since there were no proper
equipments to search the vehicle on spot thoroughly, therefore, the vehicle along with appellant
was brought to Directorate of Intelligence and Investigation, Sariab Road, Quetta. After making
entry in the Roznamcha, at about 6- 00 p.m., the detailed search was carried out by de -casing the
specially designed cavity by applying different tools and techniques, resulting into recovery of
170 kilograms charas wrapped in 140 packets. Out of the recovered charas, 30 numbers of
samples from 10 packets (three samples from. each packet, weighing 10 grams approximately)
were separated and sealed into parcel for the purpose of chemical analysis, while the remaining
charas was also sealed in separate parcels. The vehicle and charas were seized, appellant was
arrested and F.I.R. bearing No.V -Seiz/ DCl/QA/06/2008 was registered against him.
P.W.4 Syed Adnan Kafeel, Intelligence Officer was entrusted investigation, who sent the
samples of recovered charas to FSL, which were initially drawn from 10 packets and obtained
expert's report Exh.P/4- A. Subsequently, he Sent samples of recovered charas from all the
packets and received report of the expert Exh.P/4 -B and after completion of formal investigation,
submitted incomplete challan. Ex h.P/4- C and the appellant was sent up to face the trial before
the Special Judge, C.N.S. Act, Quetta.
The charge was read over to the appellant, to which he did not plead guilty and claimed trial. The
prosecution, in order to the substantiate charge, produced four witnesses. The appellant was
examined under section 342, Cr.P.C. He recorded his statement on oath as provided under
section 340(2), Cr.P.C. and also produced DW -1 Abdul Ghafoor, DW -2 Inayatullah, DW -3
Jamal -ud-Din and DW -4 Wazir Muhammad in his defence.
P.W.1 Qasim Alvi, Intelligence Officer is complainant of the case and also recovery witness,
deposed that on receiving secret information from the Director on 13th January, 2008, a raiding
party was constituted under the supervision of Jaffar H ussain, Senior Intelligence Officer. At
about 3- 00 p.m., they were present at Baleli Check Post, a vehicle Pick- up bearing Registration
No.KH- 4084 was intercepted being driven by the appellant. The vehicle along with appellant
was brought to Police Station Airport and entry was made in the Roznamcha and thereafter, they
went to Intelligence Office, Custom Sariab Road, Quetta, as the necessary equipments were not
available with them to properly search the vehicle. On search, 140 packets of Charas, weighing
170 kilograms, were recovered from the secret cavities of the vehicle. Appellant was served with
a notice under section 22 of the C.N.S. Act ' and F.I.R. was registered. He produced the notice
and F.I.R. as Exh.P/1- A and Exh.P/1- B. Recovery memo. Exh.P/1- C was prepared which was
signed by him. Personal search of the accused was conducted and memo. was prepared as
Exh.P/1- D. Earlier the samples were separated for chemical analysis and in this regard a memo.
Exh.P/1- E was prepared, over which he identified his signatures. The inventory memos. Exh.P/1-
F and Exh.P/1- G in respect of charas and vehicle were respectively prepared, which were signed
by him. He produced the recovered charas and vehicle in the court as Art.P/1 to Art. P/12.
P.W.2 Abdul Malik, Sepoy Customs Intelligence and P.W.3 Syed Jaffar Hussain, Senior
Intelligence Officer, Customs, are also recovery witnesses of the alleged recovered contraband
material and reiterated the statement of P.W.I. It may be noted that supplementary statement of
P.W.2 was also recorded on 6th May, 2009, whereas P.W.4 Syed Adnan Kafeel, Intelligence
Officer, is the Investigating Officer.
5. It appears from the record that the prosecution witnesses were cross -examined at length, but
nothing has come on record favouring the appellant or materially affects the case of prosecution
to believe that charas was not recovered from Toyota Pick -up, which was being driven by the
appellant at the relevant time. The prosecution has proved its case in respect of recovery of
charas fro m the Pick -up, which was in possession and under control of the. appellant, however,
the prosecution witnesses in their account stated that the charas, recovered from the appellant,
was in shape of rods, out of which, 10/10 grams charas from 10 packets, in the shape of I rods,
were sent to the Chemical Expert for analysis. The report of Chemical Examiner Exh.P/4 -A
dated 28th March, 2008 confirms that ten sealed parcels of 10/10 grams charas were received by
him for test, meaning thereby initially only 100 g rams of charas were sent to the expert for
analysis. It may be noted that the alleged recovered charas was in shape of rods, weighing 170
kilograms, consisting 140 packets. There is nothing available on record, showing samples for
examination by Chemical E xaminer were taken out from all the packets or each rod to prove that
entire rods/packets containing charas.
6. The record reveals that, after submission of challan Exh.P/4- C and examination of two
witnesses, on 2- 8-2008, the Investigating Officer separa ted and prepared 130 parcels, weighing 5
grams charas each, for the purpose of examination. The same were sent to expert by hand
through a customs officer and report Exh.P/4- B was produced by the Investigating Officer. The
record also reflects that the sai d report Exh.P/4- B was never submitted before the trial Court
through a proper and supplementary challan as required under section 173 of the Cr.P.C., rather
it has been placed on record by the Investigating Officer at the time of recording his statement,
while picking it out from his pocket in spite of the objection raised by the defence counsel.
7. The record also reflects that for the second time, samples were separated and sent to the
Chemical Expert after lapse of about seven months i.e. on 2- 8-2008 after the arrest of appellant
on 13- 1-2008. Nothing has come on record, which could show that during such period of time
where the charas was lying whether in the Customs Intelligence Office or somewhere else? The
prosecution was duty bound to place on rec ord the entire evidence in order to prove its case
against the appellants effectively beyond any shadow of doubt, but the evidence, which has been
brought on record, clearly missing the chain, as it has nowhere come on record as to why and
what circumstances, the Investigating Officer, at the time of recovery, instead of obtaining the
samples from the whole quantity of charas, had initially obtained samples from 10 packets.
Moreover, according to the report Exh.P/4- B, the expert received the samples from a customs
officer, but the entire record does not disclose the name of said officer, nor the prosecution could
bother to produce him before the Court in order to testify the allegation of sending samples to the
expert for the second time. In this regard, we placed reliance on a judgment reported in 1993
PCr.LJ 2287 (FSC).
8. It is well- established principle of law that the police or customs authorities are not statutorily
prohibited from investigating a case as many times as they choose and can file a fresh challan in
the court as a result of subsequent investigation or events. We have no doubt in our mind that the
powers of police to re -investigate the case or submit subsequent challan are unlimited and there
is no law precluded the police from re -investiga tion the case, however, the fact that any
document, which the prosecution intended to rely upon, should be submitted before the Court
through proper and subsequent challan as envisaged under section 173 of the Cr.P.C. If the law
requires something to be done in a specific manner, it should be done as law requires and
departure is not permissible. The police or any other investigating agency has no unfettered
powers to place a document on record in gross violation of the prescribed manner and, thus, the
trial Court has wrongly placed reliance upon the report of Chemical Expert Exh.P/4- B, which is
not an admissible piece of evidence being procured and tendered illegally.
9. Another fact of the case, which needs mention here, is that whether Exh.P/4- B as requ ired to
be supplied to the appellant as required under section 265- C of the Code of Criminal Procedure,
1898 before commencement of trial. The object of section 265- C of the Cr.P.C. appears to be to
meet the vacuum created by the abolition of commitment pr oceedings and to make available to
the accused all the available evidence, which the prosecution have for the unfolding of the true
case before the Court. The purpose is that the accused can know before he is sent up to stand
trial in a charge punishable w ith death or imprisonment for life as to what evidence he would
have to meet at the trial in order to take up a proper defence plea. The interval of seven days
emerged under section 265 -C of the Cr.P.C. is also significant, because it is meant to give the
accused sufficient time to study the allegations against him and to prepare his plea in defence.
Admittedly and surprisingly, placing on record Ex.P/4- B before the Court by the Investigating
Officer has caused serious prejudice to the appellant. The non- compliance of sections 173 and
265-C of the Cr.P.C., in peculiar circumstances of the case, has rendered Exh.P/4- B as
inadmissible piece of which cannot be relied upon in any manner.
10. We, after discarding the expert's report Exh.P/4- B, while following the dictum laid down in
the judgment reported in PLD 2004 SC 858, are of the view that the prosecution has proved its
case against the appellant only to the extent of 100 grams charas. The appellant is in custody
since 13th January, 2008, thus, the sentence awarded to the appellant be treated as already
undergone.
Appeal merits dismissal.
H.B.T./56/Q Order accordingly.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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