2017 P Cr. L J 409
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
MUHAMMAD HASHIM and another ---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos.187 and 194 of 2016, decided on 19th October, 2016.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession and trafficking of narcotics ---Appreciation of evidence ---Benefit of
doubt ---Failure to establish conscious possession of narcotic ---Effect ---Allegedly 40 -kilograms
charas in two bags were f ound beneath the seats of accused persons ---Neither the recovery memo
nor the FIR contained the seat numbers and even no tag or documentary evidence had come on
record connecting the accused with the said bags ---Mere presence of the accused persons in the
passenger bus or recovery of bags beneath their seats was not enough to fix the responsibility
upon the accused persons for transporting huge quantity of narcotics ---Prosecution had not
established physical and conscious possession on the part of the accus ed---Circumstances of the
case cast reasonable doubt about the veracity of the prosecution case, benefit of which would
resolve in favour of accused persons ---Appeal was allowed and conviction and sentences
recorded by Trial Court were set aside.
Jameela v. State PLD 2012 SC 369 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession and trafficking of narcotics ---Appreciation of evidence ---Recovery
witness, credibility ---Prosecution witness had alleged that accused persons had claimed the
ownership of the two bags of contraband at the time of checking--- Validity ---If the accused
persons had any nexus with the said bags containing huge quantity of contraband, they would
never have claimed the ownership of the same or at the be st, they could have kept mum ---Said
deposition of prosecution witness was neither believable nor appealed to the logic, hence the
same was highly doubtful ---Appeal was therefore allowed and conviction and sentences recorded
by Trial Court against accused p ersons were set aside in circumstances.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic
substance ---Appreciation of evidence ---Benefit of doubt ---Applicabilit y of S. 103, Cr.P.C.---
Contraband was allegedly recovered from two bags found beneath the seats occupied by the
accused persons ---No private witness was associated in the recovery proceedings despite the fact
that many passengers were travelling in the sai d bus at that time ---Investigating Officer did not
call any passenger, driver or cleaner to attest the arrest and recovery proceedings, which was
violation of S. 103, Cr.P.C.---Fact remained that S. 25 of Control of Narcotic Substances Act,
1997, excluded the applicability of S. 103, Cr.P.C. in narcotics cases, but great care and caution
was to be taken for association of a private witnesses if available at the time of arrest and
recovery ---Circumstances of the case had created serious doubt in the case of prosecution,
benefit of which resolved in favour of accused---Appeal was allowed and conviction and
sentences recorded by Trial Court against accused persons were set aside in circumstances.
State through Advocate -General N. -W.F.P. v. Gulla 2011 PCr.LJ 696 rel.
(d) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance ---
Appreciation of evidence ---Recovery witness failing to identify accused persons ---Effect ---
Prosecution/recovery witness had failed to identify the accused persons during trial which
suggested that prosecution recovery witness was not present at the time of recovery proceedings,
thus creating serious doubt about recovery of contraband---Benefit of such doubt would resolve
in favour of accused---Appeal was allowed and conviction and sentences recorded by Trial Court
against accused persons were set aside, in circumstances.
2003 SCMR 1419 rel.
(e) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2) ---
Seizure of narcotic---Chemical analysis of narcotics ---Appreciation of evidence ---Benefit of
doubt ---Record showed that case was registered on 29th March, 2015 and recove ry of alleged
contraband was also effected on the same date--- Investigating Officer ought to have sent the
samples for analysis within 72 hours to the Forensic Science Laboratory as required by R. 4(2)
Control of Narcotic Substances (Government Analysts) R ules, 2001---Report of Forensic
Science Laboratory had shown that samples were sent to it on 3rd March, 2015, much prior to its
recovery as well as registration of the case ---Said glaring contradiction had seriously damaged
the case of the prosecution--- In said circumstances, Forensic Science Laboratory's report, in
circumstances, had lost its evidentiary value and no implicit reliance could be placed thereon---
Appeal was allowed and conviction and sentences recorded by Trial Court against accused
persons w ere set aside in circumstances.
(f) Criminal trial ---
----Appreciation of evidence ---Benefit of doubt ---Principle ---Many circumstances creating doubt
was not necessarily required ---Accused was entitled to get benefit of slightest doubt.
Syed Abdul Baqir Shah for Appellant (in Criminal Appeal No.187 of 2016).
Qurban Ali Tareen for Appellant (in Criminal Appeal No. 194 of 2016).
Shabir Shah, Standing Counsel for the State.
Date of hearing: 26th September, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
Nos.187 and 194 of 2016 filed by the appellants Muhammad Hashim son of Muhammad Saleem
and Sanaullah son of Abdul Manan, respectively, against the judgment dated 22nd April, 2016
(hereinafter referred as, "t he impugned judgment") passed by the learned Special Judge (CNS)
Lasbella at Hub (hereinafter as, "the trial Court"), whereby the appellants were convicted under
section 9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred as, "the C.N.S.
Act") and sentenced to suffer Life Imprisonment each with fine of Rs.100,000/ - (Rupees One
Lac) each or in default thereof to further suffer S.I. for one year each, with the benefit of section
382-B, Cr.P.C.
2. Facts of the case are that on 29th March, 20 15 the complainant Shamsi Baloch, Naib
Sobedar, Coast Guards Uthal, lodged FIR No.08/2015 at Police Station Coast Guards Uthal,
under section 9(c) of the C.N.S. Act, 1997, stating therein that on the day of occurrence at about
06.00 p.m. the Pakistan Coast Guards Uthal, were checking the vehicles at Naka Khararri Check
Post main RCD Road, when a passenger Coach bearing Registration No.BSA -554 was stopped
for checking purposes, wherein the appellants Sanaullah and Muhammad Hashim were found
sitting and benea th their seats two bags were found, the ownership whereof was claimed by the
appellants. The search of the said bags was resulted into recovery of 40- packets of slate shaped
Charas weighing 40 -Kgs, hence samples of 10/10 grams were separated for analysis a nd were
sealed in parcels for analysis and the appellants were arrested.
3. In pursuance of the above FIR, investigation was conducted by PW -3 Sobedar Fayyaz
Ahmed, who took into possession the recovered contraband; recorded the statements of
witnesses under section 161, Cr.P.C.; sent the samples for analysis to FSL and received the
analysis report in affirmative. After completion of investigation, challan was submitted in the
trial Court.
4. At the trial, the prosecution produced three witnesses, whereafte r the appellants were
examined under section 342, Cr.P.C. They also recorded their statements on oath under section
340(2), Cr.P.C., however, did not produce any witness in their defence. On conclusion of trial,
the appellants were found guilty under secti on 9(c) of the Act, 1997, and were convicted and
sentenced as mentioned above. Whereafter, instant appeals have been filed.
5. Learned counsel for the appellants contended that the prosecution had failed to prove its
case against the appellants beyond reas onable doubt and, thus, these appeals warrant acceptance
with a resultant acquittal of the appellants; that the ownership of the recovered bags containing
alleged contraband was not proved; that neither the statement of driver/cleaner nor any passenger
was recorded, hence the case of prosecution is lacking independent corroboration.
6. On the contrary, learned Standing Counsel has maintained that prosecution had
succeeded in proving the guilt of the appellants to the hilt and, therefore, present appeals des erve
dismissal.
7. Heard the learned counsel and perused the record. The record reveals that on the fateful
day a bus bearing No.BSA -554 coming from Quetta towards Karachi was stopped at Naka
Khararri Check post and on checking two bags were found beneath the seats of appellants
containing huge quantity of Charas weighing 40- Kgs, hence through recovery memos the same
were taken into possession, whereafter samples were drawn from each packets and were
dispatched to FSL for analysis. We have seriously observe d that the alleged recovery was
effected from beneath the seats occupied by the appellants, but neither the recovery memos nor
the FIR contains the seat numbers and even no any tag or documentary evidence has come on
record connecting the appellants with t he said bags. Mere presence of the appellants in the
passenger bus or recovery of bags beneath their seats is not enough to fix the responsibility upon
them for transporting huge quantity of narcotics rather the prosecution has to prove the physical
and co nscious possession of the appellants through consistent and confidence inspiring evidence
by establishing that actually the appellants were the culprits, who were transporting the alleged
recovered contraband. Reliance in this regard is placed on the case of Jameela v. State PLD 2012
Supreme Court 369, relevant portion is reproduced as under:
... The law on the subject is quite settled that mere presence of a passenger in a vehicle
cannot be treated as sufficient to saddle him with the responsibility of pos session of
narcotic substance recovered from the vehicle unless the prosecution establishes through
independent evidence that such passenger was conscious and aware of availability of
narcotic substance in the vehicle. We have gone through the record of this case from
cover to cover and have found that not even an iota of evidence had been produced by the
prosecution to establish conscious possession on the part of the present appellant."
8. PW-2 being witness of recovery memo stated that during checking the appellants claimed
the ownership of the said two bags containing contraband. Such statement of PW -2 is not
believable to a prudent mind as if the appellants were having any nexus with the said bags
containing huge quantity of contraband, then under these circumstances they would never claim
the ownership of the same or at the best they could have kept mum, hence in our view such
deposition of recovery witness is neither believable nor appeals to the logic. Hence, the presence
of PW -2 at the time of allege d recovery is highly doubtful.
9. It has been established that the alleged recovery was not effected from the conscious or
exclusive possession of the appellants being passengers and traveling in a passenger bus, when
otherwise in normal routine the buses travelling from Quetta Karachi route issue tickets and seat
numbers to each and every passenger and also a tag is attached upon every bag containing the
seat number of the passenger. Besides, in the buses/coaches of said route a separate cabin is
meant for keeping the luggage. Hence, the recovery of two bags beneath the seats occupied by
the appellants is highly doubtful as it could be kept in the luggage cabin and if the appellants
were actually smuggling narcotics, they instead of taking risk by keeping the said bags beneath
their seats would prefer to keep the same in the luggage cabin. Hence, under these circumstances,
the ownership of the bags has neither been proved nor the alleged recovery could be stated to
have been recovered from the conscious or e xclusive possession of the appellants.
10. It is further astonishing to say that neither the statement of driver, cleaner nor any
passenger boarded in the said bus was recorded by the prosecution. The Investigating Officer
admitted in his cross -examination that he did not call any of the passengers, driver and cleaner of
the bus to be associated as the witness of the recovery of the contraband, whereas several
passengers were travelling in the said bus, but the Investigating Officer did not call any
passeng er, driver or cleaner to attest the recovery witness. It has further transpired from record
that notice under section 23 of the C.N.S. Act was issued to the driver of the bus, but neither he
was made a prosecution witness during investigation nor he has be en produced at the trial.
Though section 25 of C.N.S. Act has excluded section 103, Cr.P.C., yet great care and caution is
to be taken for association of a private witnesses if available at the time of arrest and recovery.
At least the Driver or Cleaner of the vehicle should have been associated with the process of
recovery of the alleged contraband narcotic from the possession of the appellants, which
otherwise was fatal to the case of the prosecution. Reliance in this regard is placed on the case of
the S tate through Advocate -General N.W.F.P. v. Gulla, 2011 PCr.LJ 696.
11. Another important aspect of the case is that the recovery witness of the alleged
contraband namely Naeem Sultan, who appeared as PW -2 has failed to identify the appellants
and admitted during his cross examination that it is correct he didn't know who is Sanaullah and
who is Hashim, which creates serious doubt in the case of prosecution and it appears that PW -2
was not the witness of recovery at all and also it creates serious doubts with regard to his
presence at the time of alleged recovery. Thus, the prosecution has also failed to establish the
presence of recovery witness at the time of alleged recovery and it seems that the said witness is
a planted witness and due to such reasons he could not explain his presence at the time of alleged
recovery. Reliance can be made on 2003 SCMR 1419 wherein it was held by the Hon'ble Court
Supreme Court as under:
"Tainted piece of evidence cannot furnish corroboration to another piece of tainted
evidence...... Wajtakkar type of witness was always treated to be a chance witness and his
presence could be accepted if he/she could establish his/her presence at the place of
incident but in the absence of such explanation the prosecution was bound to place on
record some strong evidence to corroborate his/her statement ... Evidence of Wajtakkur
type of witness could be doubted on number of reasons including his own residence and
acquaintance of the witnesses with the accused."
12. So far as the Chemical Exam ination Report Ex.P/3- C is concerned, suffice to observe
here that the instant case has been registered on 29th March, 2015, meaning thereby that the
recovery of the alleged contraband was also effected on the said date and the Investigating
Officer ought to have sent the samples for analysis within 72 hours to the FSL as required by
Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal
of FSL report indicates that the samples were sent to it on 3rd March, 2015 i.e. much prior to its
recovery as well as registration of the case and this fact was also admitted by the Investigating
Officer in his cross -examination. Such glaring contradiction has seriously damaged the case of
the prosecution, hence under these circumstances the FSL report Ex.P/3 -C has lost its evidentiary
value and no implicit reliance could be placed upon such report.
13. The reappraisal of entire prosecution evidence establishes that the prosecution has
miserably failed to substantiate the charge agains t the appellants. The contradiction and
discrepancies so pointed out by the learned counsel for the appellants cannot be taken lightly. It
is a well settled principle of law that an accused is entitled to get the benefit of a slightest doubt,
whereas in th e instant case certain discrepancies, dishonest improvement and doubts are apparent
on the face of record, but the trial Court while delivering the impugned judgment has failed to
extend the benefits of such doubts in favour of the appellants.
For the above reasons, the appeals are accepted. The impugned judgment dated 22nd
April, 2016 passed by the learned Special Judge Control of Narcotic Substances Lasbella at Hub
is set aside and the appellants Muhammad Hashim son of Muhammad Saleem and Sanaullah son
of Abdul Manan are acquitted of the charge under section 9(c) of the C.N.S. Act 1997. The
appellants being in custody, are ordered to be released forthwith if not required in any other case.
Above are the reasons of our short order dated 26th September, 2016.
JK/69 -Bal. Appeals accepted.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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