2020 Y L R 2161
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
ABDUL HADI ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 332 of 2019, decided on 18th December, 2019.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 25---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4-
--Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics ---Appreciation of
evidence--- Sentence, reduction in ---Dispatch of sample for test or analysis ---Mode of making
searches and arrest ---Search to be made in presence of witnesses ---Non -association of private
witnesses ---Effect ---Accused was alleged to have been driving a vehicle from the secret
cavities of which 10 kilograms of charas was recovered ---Witnesses were cross -examined at
length by the defence but nothing favourable could be brought on record---Contention of accused regarding violation of S.103, Cr.P.C. by not joining private persons in recovery proceedings had no force because it was excluded by S.25 of Control of Narcotic Substances
Act, 1997 ---No proof of enmity between the complainant and prosecution witnesses was
brought on record, in the absence whereof they were competent witnesses ---No delay in
sending the samples to the Chemical Examiner as the same were delivered within 72 hours ---
Chemical Examiner after conducting chemical test with complete protocols found the samples to be charas ---High Court observed that since only 10 kilograms of charas was
recovered, therefore, ca se did not fall within the ambit of proviso to S.9(c) of Control of
Narcotic Substances Act, 1997--- Conviction of accused under section 9(c) was maintained
but his sentence was reduced ---Appeal was dismissed.
Zafar v. The State 2008 SCMR 1254 rel.
(b) Co ntrol of Narcotic Substances Act (XXV of 1997) ---
----S. 9 ---Possession of narcotics ---Appreciation of evidence ---Liability of driver ---Scope ---
Person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics.
Kashif Amir v. State PLD 2010 SC 1052 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 25--- Criminal Procedure Code (V of 1898), S. 103--- Mode of making searches and
arrest ---Appreciation of evidence ---Search to be made in presence of witnesse s---Scope ---
Reluctance of the general public to become witness in cases relating to narcotics is a
judicially recognized fact and there is no option but to consider the statement of official witnesses, as no legal bar has been imposed in such regard.
Muhammad Dawood and Khalil Ahmed Panezai for Appellant.
Habibullah Gul, Additional Prosecutor General ("A.P.G.") for the State.
Date of hearing: 21st November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Criminal Appeal under section 48 of Control of
Narco tic Substances Act, 1997 (hereinafter "the Act") is directed against the judgment dated
31.08.2019 (hereinafter "the impugned Judgment") passed by the learned Special Judge,
Control of Narcotic Substances Act, 1997/Additional Sessions Judge, Killa Saifulla h
(hereinafter "the appellate Court") whereby the appellant Abdul Hadi son of Abdul Ghaffar has been convicted under section 9(c) of the Act and sentenced to suffer Rigorous Imprisonment (RI) for life with fine of Rs.2,00,000/ - (Rupees Two Lacs Only) and i n default
whereof to further undergo for a period of three (03) months Simple Imprisonment (SI) with benefit of Section 382- B, Cr.P.C.
2. Briefly stated the facts of the case are that FIR No.66 of 2019 for an offence under
section 9(c) of the Act was regis tered with Police Thana City, Killa Saifullah, on 26.07.2019
on the written report of complainant/PW -1, IP/SHO, Shingul Mandokhail (Ex.P/1- A) FIR
(Ex.P/3 -A) was registered on 26.07.2019 with the allegation that on the said date, the
complainant/PW -1 and ot her police officials namely Munir Ahmed, Ghulam Mustafa and
Abdul Manan were on area patrolling in a police mobile, he received spy information through phone that a Charas is being smuggled in Toyota vehicle registration No.ATM -218,
white in color, from Quetta to Loralai. On receiving this information the complainant/PW -1
held Naka at Niaz Petrol Pump, in the meanwhile, at about 1:30 a.m., the vehicle registration No.ATM -218 arrived from Quetta, the police party signaled the driver to stop, however, the
driver tried to flee away but he was apprehended by the help of police party and ATF staff.
On query the driver disclosed his name as Abdul Hadi son of Abdul Ghaffar, caste Nasar, resident of Loralai. On search, in presence of witnesses, ten (10) packets of r aw Charas were
recovered beneath the mat of driving seat. On weighing each packet was found to be one kilogram, the complainant separated ten grams each from all ten packets for the purpose of analysis and prepared seal parcels. The complainant sent a Murasila to Police Station Killa Saifullah for registration of the FIR. Hence crime report.
3. On completion of investigation, challan of the case was submitted before the trial
Court. Charge against the accused was framed to which he pleaded not guilty and claimed trial.
4. At the trial, in order to substantiate the case against the appellant, the prosecution
examined the following witnesses.
(i) PW-1, Shingul Mandokhail, IP/SHO who is complainant of the case. He produced his
report (Ex.P/1 -A), recovery memo (Ex.P/ 1 -B).
(ii) PW-2, Munir Ahmed, constable allegedly in his presence recovery was effected and
the same was taken into possession through recovery memo (Ex.P/1- B).
(iii) PW-3, Abid Hussain, SI, who conducted investigation of the case. He produced FIR
(Ex.P/3 -A), FSL report (Ex.P/3- B) and challan (Ex.P/3 -C).
5. On completion of prosecution evidence, the statement of the appellant was recorded
under section 342, Cr.P.C., wherein he professed innocence and denied the allegations
levelled against him. The appellant did not record his statement on oath as envisaged under section 340(2), Cr.P.C. However, he produced two defence witnesses namely DW -1 Sher
Zaman and DW -2 Niamatullah.
6. The learned trial Court after hearing the learned counsel of the parties an d on
assessment of the evidence, convicted and sentenced the appellant, as stated above vide judgment dated 31.08.2019 which he impugned before this Court by way of filing instant Criminal Appeal.
7. Learned counsel for the appellant submitted that the impugned judgment is contrary
to facts and law; that the appellant has been involved with the mala fide intention and ulterior motives; that no private mushir was associated in recovery proceedings which is clear violation of section 103, Cr.P.C.; that a fals e case has been registered against the appellant
and Charas has been foisted upon him; that parcels were sent to chemical examiner with delay of two days and it was kept at police station hence it cannot be said that the same was in a safe custody; that no mark and number on each sample was put by the I.O. for sending
the same to FSL; that Mohrer of the police station was not produced before the Court; that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt, hence he is entitled to be acquitted.
8. Learned APG while supporting the impugned judgment has argued that the
prosecution has proved its case against the appellant who was found transporting huge quantity of narcotics substance which was secured from the beneath of driver seat which was being driven by the appellant; that the police officials had no enmity to foist such a huge quantity of Charas upon the appellant. He stated that samples were sent to FSL without any delay and sent the same on the next da y; that the Charas was sealed at the spot and as such
memo was prepared in presence of mushir; that no question arise for transmission of the safe custody; that the chemical experts after due procedure and protocol prepared FSL report. He lastly prayed for dismissal of the instant appeal.
9. We have heard the learned counsel for the appellant, learned APG for the State and
have gone through the record with their able assistance.
10. It has borne out from the record that 10 kilograms Charas was recovered from secret
cavities of the vehicle from each packets, 10 kilograms of Charas was separated as sample
for chemical examination and sealed in white paper and remaining Charas was sealed into
parcel on the spot which was driven by appellant, hence the appellant is found responsible for transportation of the huge quantity of narcotics having prior knowledge of the narcotics substance in his vehicle. The witnesses were cross -examined by the learned counsel for the
appellant at length but nothing could be brought on record in favour of the appellant/accused.
In spite of lengthy cross -examination by PWs nothing beneficial could be elicited regarding
any help to the case of the appellant.
11. It is well settled principle of law that a person who is on driving seat of the vehicle
shall be held responsible for transportation of narcotics as held by the Hon'ble Supreme
Court in the case of Kashif Amir v. State PLD 2010 SC 1052. The relevant portion is
reproduced hereunder: --
"It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in se ction 9 (b) of CNSA that the
possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is Incharge of the same and it would
be under his control and possession, hence, whatever ar ticles lying in it would be
under his control and possession. Reference in this behalf may be made to the case of
Muhammad Noor v. The State 2010 SCMR 927. Similarly, in the case of Nadir Khan v. State 1998 SCMR 1899, this Court has observed that knowledge and awareness
would be attributed to the Incharge of the vehicle".
12. Adverting to the contention of the learned counsel for the appellant/accused that no
private person was joined in recovery proceedings except police officials, which is violation of se ction 103, Cr.P.C. There appears no force in the contention of learned counsel as
application of section 103, Cr.P.C., has been excluded by section 25 of the Act, in narcotics cases. In the case of Zafar v. The State reported in 2008 SCMR 1254, the Hon'ble Supreme
Court has held that:
"Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees".
13. Moreover, reluctance of general public to become witness in such like cases was a
judicially recognized fact and there was no option left but to consider the statement of an official witness as no legal bar had been imposed in that regard. In the instant case, no proof of enmity with the complaina nt and the prosecution witnesses has been brought on record,
thus, in absence thereof, the competence of prosecution witnesses being officials was rightly believed. Moreover, the PWs were not at all questioned about any previous ill -will or animus
with the appellant whereby they could have been falsely nabbed and charged for the
possession of the 10 kilograms Charas.
14. The next contention of the learned counsel for the appellant/accused was that the
parcel was sent to chemical examiner, with delay of two days and it was kept at police
station, hence it cannot be said that the same was in safe custody. Apparently there appears
no delay in sending the Charas to chemical examiner for the reason that the recovery was made on 26.07.2019 at 1:30 p.m., and the pa rcels were received in the office of Chemical
Examiner on 29.07.2019 and as per law the same is to be sent to laboratory within 72 hours and investigation officer PW -3 had complied with the same by delivering the sample to the
laboratory himself on 29.07.2019 and he also got recorded his statement as PW -3, therefore,
there is no substance in the submissions made by the learned counsel for the appellant. Furthermore, as per chemical report (Ex.P/3 -B) which shows that the seals of the parcels
were perfect and satisfactory. Even otherwise no tampering was alleged by the appellant,
therefore, it cannot be said that the property was not in safe custody. The report of FSL (Ex.P/3 -B) further provided that after conducting chemical test with complete protocol
(descr iptions whereof are available in the FSL report), the same have been found Charas
(raw).
Considering the above facts and circumstances, we are of the view that prosecution
has succeeded to bring the guilt of accused/appellant at home and has proved its ca se against
the appellant beyond any shadow of a doubt. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the trial Court while
passing the impugned judgment, which in our humble view, is bas ed on an appreciation of
evidence and same does not call for any interference. However, the recovery of Charas from
the car was established but the quantity of the same exceeding 10 kg was not established, only 10 kg Charas was recovered. The case of the prosecution would not fall within the ambit of the proviso added to section 9(c) of the Act under which an accused having narcotics exceeding 10 kg is to face punishment not lesser than life imprisonment. Section 9(b) of the Act prescribes punishment extendable to seven (07) years and fine while section 9(c), when
read in isolation to the proviso prescribes punishment of imprisonment extendable to 14 years and fine up to one million rupees. We are of the view that the quantum of sentence awarded to the appel lant is not sustainable in the eyes of law because the Charas was
recovered from the accused was not exceeding 10 kg.
In view of the above, the conviction of the appellant under section 9(c) of the Act is
maintained but his sentence is reduced from impris onment for life to twelve (12) years and
six (06) months RI, while the fine imposed and in default of payment of fine for a period of three (03) months' S.I. with benefit of section 382- B, Cr.P.C., is remained intact.
With the above modification in the se ntence the appeal is hereby dismissed.
SA/9/Bal. Sentence reduced.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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