2022 Y L R 1222
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Razi Khan Barrech, JJ
NAJEEBULLAH and others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos.143 of 2020, decided on 31st December, 2020.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of Narcotics ---Appreciation of evidence ---Prosecution case was that
five kilograms hashish and a cash of Rs.535,000/ - were recovered f rom the vehicle of the
accused persons ---Record showed t hat all the witnesses were consistent on all material
aspects ---No distinct discrepancy was noticed to spoil the credibility of the testimony of the
witnesses---Said witnesses were subjected to cross -examination by the defence, but their
testimony was not shattered ---From the evidence, the mode and manner of arrest of accused
leading to the recovery of narcotic had been proved--- Prosecution evidence inspired
confidence, while recovery of the narcotic from the vehicle which was driven by the accused
was also proved by the prosecution ---Accused was found responsible for transporting of
huge quantity of the narcotic having a prior knowledge of the narcotic substance in his vehicle ---In rebuttal to overwhelming prosecution evidence, the accused had failed to
produce any tangible, trust -worthy and confidence inspiring evidence of the prosecution
witnesses---Circumstances established that the prosecution had proved its case against the accused ---Appeal against conviction was dismissed accordingly.
(b) Control of Na rcotic Substances Act (XXV of 1997) ---
----S. 9--- Possession of narcotics ---Appreciation of evidence ---Transporting of narcotic ---
Liability of driver ---Scope ---Person who is on driving seat of the vehicle shall be held
responsible for transportation of na rcotics.
Kashif Amir v. State PLD 2010 SC 1052 rel.
(c) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(c) & 25--- Criminal Procedure Code (V of 1898), S. 103--- Possession of narcotics ---
Appreciation of evidence ---Search and arrest, mode of - --Search to be made in presence of
witnesses---Non -association of private witnesses ---Effect ---Five kilograms hashish and a cash
of Rs.535,000/ - were recovered from the vehicle of the accused persons ---Contention of the
accused was that no private person w as joined in recovery proceedings except Police
Officials, which was a violation of S. 103, Cr.P.C. ---Such contention of accused had no force
as the application of S.103, Cr.P.C. had been excluded by S.25 of the Act ---Reluctance of the
general public to be come a witness in such like cases was a judicially recognized fact and
there was no option left but to consider the statement of official witness as no legal bar had
been imposed in that regard ---In the present case, no proof of enmity with the complainant
and the prosecution witnesses had been brought on record, thus, in the absence thereof, the
competence of prosecution witnesses being officials was rightly believed---Witnesses were
not at all questioned about any previous ill -will or enmity with the accu sed whereby they
could have been falsely nabbed and charged for the possession of five kilogram hashish---Circumstances established that the prosecution had proved its case against the accused ---
Appeal against conviction was dismissed accordingly.
Zafar v . The State 2008 SCMR 1254 rel.
(d) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) --- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---
Possession of narcotics ---Appreciation of evidence ---Delay of about three days in sending
samples of recovered material to the Forensic Science Laboratory ---Chain of safe custody ---
Prosecution case was that five kilograms hashish and a cash of Rs.535,000/ - were recovered
from the vehicle of the accused persons ---Record showed that samp les were sent to the office
of the Chemical Examiner within seventy two hours of the recovery---Even otherwise, dispatching of sample beyond 72 hours was not a sine qua non--- Mere delay in sending the
sample to the laboratory was not at all fatal to the pr osecution case because Rr. 4 & 5 of the
Control of Narcotic Substances (Government Analysts) Rules, 2001,did not place any bar on
the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband--- Said provisions in that respect were directory and not mandatory ---Nothing was
on record to establish that the sample parcel was ever tempered with rather the evidence led by the prosecution established that when the parcel was received by the said agency, remained intact--- Circumstances established that the prosecution had proved its case against
the accused ---Appeal against conviction was dismissed accordingly.
(e) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Benefit of doubt ---
Prosecution case was that five kilograms hashish and a cash of Rs.535,000/ - were recovered
from the vehicle of the accused persons ---Record showed that the prosecution had failed to
prove any link of the co -accused persons with th at of the accused ---No recovery, whatsoever,
was affected from the co -accused persons and the contraband was recovered from the trunk
(dikki) of the vehicle ---Prosecution had failed to establish that the co- accused were in
knowledge of the narcotic or that the same was exposed to them ---Co -accused were
passengers and having no link either with the accused or the vehicle which was used in the crime ---If the contraband was lying open within the view of the co- accused persons or they
knew the placement of the same in the secret cavities, then the situation would have been
different ---Prosecution had simply proved presence of the co- accused persons in the vehicle -
--Mere presence of the co -accused persons in the vehicle would not involve them in the case -
--Circum stances established that the prosecution had failed to prove its case against the co -
accused persons ---Appeal against conviction to the extent of co- accused was allowed, in
circumstances.
Qaisarullah v. State 2009 SCMR 579 rel. 3.
Jameel Ahmed Babai and Amanullah Batezai for Appellants.
Miss Noor Jahan Kahoor, A.P.G. for the State.
Date of hearing: 28th December, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellants namely Najeebullah son of
Ahmedullah, Naseemullah son of Mira Jan (appellants in Criminal Appeal No. 143 of 2020)
and Wali Muhammad son of Akhtar Muhammad (appellant in Criminal Appeal No. 148 of
2020) have been convicted under section 9- c of the Control of Narcotic Substances Act, 1997
(thereinafter the "CNS Act") in case FIR No. 142/2019 PS Pishin by the learned Model
Criminal Trial Court/Additional Sessions Judge ("trial court") vide judgment dated 29.07.2020 ("impugned judgment") passed in CNS Case No. 03/2020 and sentenced to suffer RI for a period of seven years and to pay fine of Rs.50,000/ - each and in default of payment
of fine to further suffer SI for three months each with benefit of section 382- B, Cr.P.C.
2. Briefly stated facts of the case are that on 25th December 2019 the aforesaid FIR was
registered on the complaint of ASI Noorullah with PS Pishin with the allegation that on the
fateful day he along with, other police officials, upon receiving information about trafficking of narcotics at about 4:30 pm signaled a Surf vehicle coming from Sar anan to stop, but the
driver tried to escape but he was chased down and apprehended at Christian Colony Pishin. The driver disclosed his name as Wali Muhammad son of Akhtar Muhammad, where the person sitting on the front seat disclosed his name as Molvi Na jeebullah son of Ahmedullah
and the person on the rear seat disclosed his name as Naseemullah son of Mira Jan. From personal search of the driver one Walkie -Talkie and from the passenger on the front seat a
total of Rs.535,000/ - were recovered but nothing was recovered from the third passenger.
Checking of the vehicle resulted into recovery of 5 kilograms of Hashish, which was taken into possession through recovery memo in the presence of the witnesses. Hence, the crime report.
After completion of the inve stigation the challan was submitted before the trial court.
After a full dressed trial the appellants were convicted and sentenced as mentioned hereinabove. Hence, these appeals.
Since both the appeals are arising out of one and same judgment of the trial court;
therefore, the same are being decided through this single judgment.
3. We have heard the arguments advanced by learned counsel for the appellants, learned
APG and have also perused the record available on case file.
4. It has borne out from the rec ord that 5 kilograms Charas were recovered from a
vehicle which was driven by the appellant/accused Wali Muhammad and the same were
taken into possession through recovery memo and was sealed in a parcel on the spot.
5. While going through the prosecution e vidence, especially statement of Noorullah ASI
PW-1 who is complainant of the case seizing officer, Samiullah constable PW -2 who is the
marginal witness of the recovery memo Ex.P/2 -A and member of the police party, in whose
presence the alleged Charas was recovered from the vehicle, Imtiaz Ahmed ASI, PW -3 who
conducted investigation of the case.
6. It transpires that all the above witnesses are consistent on all material aspects. No
distinct discrepancy was noticed to spoil the credibility of their testimony, and they were
subjected to cross -examination by the learned counsel of the accused/appellant , but their
testimony was not shattered. From the evidence, the mode and manner of arrest of appellant
leading to the recovery of narcotic have been proved, the prosecution evidence is also inspiring confidence, while recovery of the narcotics from the veh icle which was driven by the accused
Wali Muhammad was also proved by the prosecution. Hence, the accused/appellant is found responsible for transporting of huge quantity of the narcotics having a prior knowledge of the narcotics substance in his vehicle.
7. 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 as held by the Hon'ble Supreme Court in the case of Kashif Amir v. State (PLD 2010 SC 1052). The relevant por tion 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 section 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 articles 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 kn owledge and awareness would be
at attributed to the Incharge of the vehicle".
8. Adverting to the contention of the learned counsel for the appellant/accused Wali
Muhammad that no private person was joined in recovery proceedings except police officials, w hich is a violation of section 103, Cr. P. C. There appears no force in the
contention of learned counsel as the 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".
9. Moreover, the re luctance of the general public to become a 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, n o
proof of enmity with the complainant and the prosecution witnesses has been brought on record, thus; in the absence thereof the competence of prosecution witnesses being officials was rightly believed. Moreover, the PWs were not at all questioned about a ny previous ill -
will or enmity with the appellant whereby they could have been falsely nabbed and charged
for the possession of the 5 kilograms Charas.
10. The next contention of learned counsel for the appellant is that the parcel was sent to
the chemical examiner with delay of three days and was kept at the police station, hence
cannot be said that the same was in safe custody. The alleged recovery was effected on
25.12.2019 while samples were sent to the office of the chemical examiner on 27.12.2019 within seventy two hours. Even otherwise, dispatching of sample beyond 72 hours is not a
sine qua non. Mere delay in sending the sample to the laboratory is not at all fatal to the prosecution case because Rules 4 and 5 of the Control of Narcotic Substances (G overnment
Analysts) Rules, 2001, do not place any bar on the investigating officer to send the samples beyond 72 hours of seizure or recovery of the contraband. The provisions in this respect are directory and not mandatory. There is nothing on record to e stablish that the parcel was ever
tampered with rather the evidence led by the prosecution established that when the parcel was received by the said agency, remained intact. Even the investigation officer Imtiaz Ahmed ASI PW -3 himself deposited the parcel to the FSL laboratory. The name of PW -3
also appears in the FSL report Ex.P/3- D.
11. The report of the FSL (Ex.P/3 -D) further proved that after conducting the chemical test
with complete protocol (description thereof are available in FSL report), the same have been found Charas.
12. After having an analysis of the prosecution evidence, we are of the candid view that
prose cution has ably established the charge against the accused/appellant Wali Muhammad
who was driving the vehicle and from the trunk (Dikki) whereof the alleged Charas was
recovered and he was responsible for the said recovery.
13. In view of the recovery of huge quantity, we can safely observe that there is no
possibility of false implication of the accused/appellant Wali Muhammad in the offence
entailing stringent punishment, especially in the absence of any proven enmity. We have noticed that in rebuttal to overwhelming prosecution evidence, the accused/appellant has
failed to produce any tangible material to rebut the trust- worthy and confidence inspiring
evidence of the prosecution witnesses.
We are, thus, of the considered view that prosecution has succe ssfully established the
guilt of the accused/appellant Wali Muhammad son of Akhtar Muhammad (appellant in Criminal Appeal No. 148 of 2020), and he was rightly convicted by the learned trial court.
The sentence awarded to the appellant duly commensurate wit h his act. Resultantly the
Criminal Appeal No.148 of 2020 fails and is accordingly dismissed. the conviction and
sentence of the accused/appellant Wali Muhammad son of Akhtar Jan is, thus, maintained.
14. So far the appeal filed by the appellants/accused Najeebullah son of Ahmedullah and
Naseemullah son of Mira Jan (appellants in Criminal Appeal No. 143 of 2020) is concerned, the prosecution has failed to prove any link of these appellant with that of the co- accused
Wali Muhammad. No recovery whatsoever wa s effected from them and the contraband was
recovered from the trunk (dikki) of the vehicle. The prosecution has failed to establish that these appellants were in knowledge of the narcotics or that the same was exposed to them. The accused/appellants were passengers and having no link either with the accused/appellant
Wali Muhammad or the vehicle which was used in the crime.
15. If the contraband was lying open within the view of these appellants or they knew the
placement of the same in the secrete cavitie s, then the situation would have been different.
The prosecution has simply proved presence of the accused/appellants in the vehicle. Mere presence of the accused/appellants in the vehicle would not involve them in the case. The prosecution has failed to prove its case against the accused/appellants Najeebullah and Naseemullah. In a similar situation, in case of Qaisarullah v. State (2009 SCMR 579), the august Supreme Court of Pakistan while examining a similar question observed as under: --
"The prosecutio n failed to prove through convincing evidence that Abdul Wali had
exclusive knowledge of the concealment of narcotics in a car, which neither belonged nor was being driven by him."
16. So far the conviction of the appellants in Criminal Appeal No. 143 of 2 020 in respect
of their punishment under section 20 of the Telegraph Act 1855 is concerned, the prosecution alleged that the a Walki -Talkie was recovered from accused Wali Muhammad and
Najeebullah. PW- 2 Habibullah head constable stated during cross -examina tion that it is
correct that the walkie -talkie were old and broken and there was no antenna in the same. He
further stated during cross -examination that it is correct that without antenna the walkie -
talkie is not in working conditions. Even otherwise, the said walkie -talkies were not sent to
FSL to verify the working condition of the same, which creates reasonable doubt in the prosecution case. Thus, the prosecution failed to prove the case against the appellants Najeebullah, Naseemullah and Wali Muhammad u nder section 20 of the Telegraph Act 1855,
as such, they are acquitted from the charge under section 20 of the Telegraph Act 1855.
Since the prosecution has .failed to bring home the charge against the
accused/appellants Najeebullah son of Ahmedullah, Nas eemullah son of Mira Jan under
section 9 -c of the CNS Act, therefore, the trial court's judgment to the extent of their
conviction under section 9- c of the CNS Act is also hereby set aside. Consequently, they are
also acquitted from the charge under Sectio n 9-c of the CNS Act in FIR No. 142 of 2019.
They shall be released forthwith if not required in any other case.
JK/48/Bal. Appeals allowed.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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