2012 P Cr. L J 606
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
ABDUL LATEEF ---Appellant
Versus
THE STATE ---Respondent
Criminal Jail Appeal No. 53 of 2008, decided on 30th November, 2011.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 36---Criminal Procedure Code (V of 1898), S.156(1) ---Possessing narcotics ---
Appreciation of ' evidence ---Personnel of Criminal Investigation Agency (CIA), no doubt,
under S.156(1), Cr . P. C., had no power to iii vestigate a cognizable offence, but in the present
case F.I.R. had been lodged at concerned police station and challan had also been submitted
before the court by the S.H.O. of the said police station ---Even if it was presumed that Sub-
Inspector C.I.A. was not competent to investigate the matter, it would amount only to an irregularity which would not affect the trial, particularly when neither any prejudice or injustice had been caused to the accused, nor he had raised such obj ection during the trial ---
Trial Court had discussed the evidence in its true perspective and based its decision on valid reasons ---Section 103, Cr. P. C. was not applicable to narcotic cases by virtue of S.25 of
Control of . Narcotic Substances Act, 1997--- Prosecution witnesses had given
straightforward and confidence -inspiring evidence, who had no malice or animus against the
accused ---Planting of forty Kilograms heroin on the accused by the police was not
believable ---Section 36 of the Control of Narcotic Substances Act, 1997, did not require
dispatch of the whole recovered lot to Chemical Examiner for analysis, as a sample thereof
was always treated as a part of the total ---Sending of 40 grams out of 40 Kilograms of heroin
as sample to Chemical Examiner, therefore, was not questionable ---Defence plea was absurd,
improbable and unreasonable ---House of recovery was owned by the wife of accused ---
Impugned judgment did not suffer from any illegality or material irregularity---Appeal was dismissed accordingly.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 36 ---Quantity of recovered substance to be sent to Chemical Examiner ---Under S.36 of
the Control of Narcotic Substances Act, 1997, the whole recovered lot is not required to be
sent to Chemical Examiner for test and analysis, as a sample thereof is always treated as a
part of the total.
Abdul Karim Yousafzai for Appellant.
Haji Liaquat Ali for the State.
Date of hearing: 27th October, 2011
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this judgement , we intend to
dispose of Criminal (C.N.S.) Jail Appeal No.53 of 2008, .whereby the Special Judge, under
Control of . Narcotic Substances Act, 1997, Lasbella at Hub vide his judement dated 17th October, 2008 has convicted and sentenced appellant Abdul Lati f son of Moula Bakhsh
under section 9(c) of the Control of Narcotic Substances Act, 1997 (the C.N.S. Act) to suffer life imprisonment with fine of Rs.100,000 (rupees one lac only), or in default thereof to further undergo six months' S.I. Benefit of section 382- B of the Cr.P.C. was also extended to
the appellant.
2. On 13th . May, 2008, P.W.2 Munawar Ali Lasi, IP/CIA (the complainant), in his murasila
Exh.P/2- B, on the basis whereof F.I.R. Exh.P/5 -E was registered at Police Station Hub City
District Lasbel la, alleged that during course of patrolling, along with other staff, he received
secret information to the effect that Abdul Latif son of Moula Bakhsh (the_ accused) is
present in his house situated at Akbar Colony Lingo Para, having huge quantity of hero in,
which he is going to shift to some other place. On receipt of the said information, the complainant and other staff raided the said house where they found the accused in a residential room of the said house, sitting on a cot and on search, 39 packets of heroin in packed shape and 01 packet in open shape, each packet containing 01 kilogram, total weighing 40 kilograms, were recovered from beneath the beddings of said cot, which were taken into possession vide memo, the accused was arrested and F.I.R. No.89 of 2008 under section 9(c) of the C.N.S. Act was registered against him.
3. After investigation of the case, the matter was sent for trial to the Court of Special Judge, under Control of Narcotic Substances Act, 1997, Lasbella at Hub (the trial Court) , who after
full-fledged trial, convicted and sentenced the appellant, as mentioned hereinabove above,
hence, this appeal.
4. Mr. Abdul Karim Yousafzai, learned counsel for the pauper appellant, in support of his case, submitted that the entire investiga tion was conducted by
, the CIA staff, who were not
competent to do so and, thus, all things done by them were illegal and based on mala fide;
that Munawar Ali Sheikh, IP/Incharge CIA staff Lasbella at Hub, had no authority, to arrest
the appellant, register the F.I.R. or to record the statements under section 161 of the Cr.P.C.
of the witnesses; that if law required certain thing to be done in a particular manner, the same should be done in that manner; that the entire evidence is unauthorized and has vitia ted the
entire trial; that the house, from where the alleged recovery had been effected, was not mutated in the name of appellant in the Revenue Record; that no private witness had appeared in support of the prosecution case; that only 40 grams heroin were sent to the
Chemical Examiner, while the remaining remained in the custody of the prosecution; that the
provisions of section 103 of the Cr.P.C., as well as sections 20 and 21 of the C.N.S. Act, had
been violated and; that the defence plea taken by the ap pellant was more probable and nearer
to truth, but the same had been discarded by the trial Court without any legal justification, thus, the judgment impugned herein may be set aside and the appellant may be acquitted.
5. On the contrary, the appeal has been vehemently opposed by Haji Liaquat Ali, Advocate,
representing the State, who submitted that the appellant is nominated in the F.I.R.; that 40
kilograms of heroin have been recovered from him; that all the prosecution witnesses have deposed against hi m and no enmity of any nature has been shown against him, which could
show that the P.Ws. have deposed against him falsely and; that the defence plea has been
introduced by the appellant, just to hide his own guilt, thus, the appeal, being meritless, deser ves dismissal.
6. The main thrust of argument of learned counsel for the pauper appellant was that the investigation was conducted by CIA Police, as the Investigating Officer was a Sub- Inspector
of CIA, therefore, the entire investigation was illegal, void, ab initio and the appellant was
entitled to acquittal on this ground alone, however, we are not impressed by the contention of learned counsel being misconceived. P.W.2 Munawar Ali Sheikh, IP, who was posted at CIA Center Lasbella at Hub, had received secret information during their routine gusht about the
existence of huge quantity of heroin in the house of accused Abdul Latif, situated at Akram Colony, Langove Para, Hub, which was to be shifted instantly. Accordingly, he raided and entered the said ho use, wherefrom 40 kilograms heroin were recovered from the possession
of the appellant. However, the said Inspector, sent the murasila to Police Station Hub City, District Lasbella, where the F.I.R. was registered and investigation of this case was entrusted to Mazhar Igbal, SI, of CIA Center Lasbella, who conducted the investigation and recorded the statements of P.Ws. under section 161 of the Cr.P.C. There is no cavil to the proposition
that' under section 156(1) of the Cr.P.C, the CIA personnel have no power to investigate a
cognizable offence, but, in the instant case, F.I.R. of the case had been lodged at Police
Station City Hub, District Lasbella and the challan of the case was also submitted before the Court by the Station House Officer (SHO), Muhamm ad Amin Lasi, of the said police station.
Even if it is presumed that Mazhar Igbal,
' SI, was not competent to investigate the matter, yet
it would amount to only an irregularity, which will not affect the impugned judgment or the whole trial, particularly when neither any prejudice nor injustice was caused to the appellant, nor he raised such objection during the course of trial, therefore, at this belated stage, he is
estopped under the law to raise such objection.
7. So far as the contention of learned counsel for the appellant regarding the arrest of
appellant by the CIA staff is concerned, the same has no legs to stand on, as section 54 of the
Cr.P.C. furnishes a complete answer to the said contention, which speaks as under: -
"54. When police may arr est without warrant. ---(1) Any police -officer may, without an order
from a Magistrate and without a warrant, arrest:
Firstly, any person who has been concerned in any cognizable offence or against whom a
reasonable complaint has been made or credible in formation has been received, or a
reasonable suspicion exists of his having been so concerned;
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8. Reverting to the merits of the case, we are of the opinion that the trial Judge has discussed
the evidence in its true perspective and has given valid reasons for concluding the case. The
judgment of the trial Judge does not suffer from` any illegality or material irregularity. The provisions of se ction 103
, of the Cr.P.C. have no application to the narcotic cases as provided
under section 25 of the C.N.S. Act. Even otherwise, we are conscious of the fact that strangers always avoid to poke their nose in such- like cases. The prosecution witnesses ha ve
furnished straightforward and confidence -inspiring evidence and there is nothing on record
to show that they are deposing against the appellant maliciously or out of animus. It cannot be believed that the official would plant such a huge quantity of nar cotic on the appellant
from their own resources.
9. So far as the contention of learned counsel that out of entire lot i.e. 40 kilograms heroin,
only a negligible quantity of 40 gramq had been dispatched to the chemical analyst is concerned, we are of th e -opinion that under the provision of section 36 of the C.N.S. Act,
the whole lot is not required to be sent to the Examiner for the purpose of test, as sample is always treated as part of the total.
10. Similarly, a bare perusal of the version, introduced by the appellant, shows that the same is absurd, improbable and even does not appeal to reasons. It also reveals that the same is afterthought and made just to hide his own guilt and the same is nothing, but a cock and bull story.
, The house in question, wherefrom the recovery of contraband material, has been
effected, is in the name of appellant's wife and in this respect the prosecution produced stamp -paper mark P/4 -A.
For the aforesaid reasons, the appeal being meritless is dismissed.
N.H.Q./167/ Q
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??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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