2022 Y L R 694
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ
MUHAMMAD AMEEN---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 2 of 2021, decided on 11th February, 2021.
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(b) ---Possession of narcotics ---Appreciation of evidence ---Prosecution case was that
520 grams of baked charas was recovered from personal possession of the accused---
Prosecution, in order to substantiate its case pr oduced and examined four witnesses in all ---
Record transpired that all the said witnesses were consistent on all material aspects ---No
distinct discrepancy was noticed to spoil the credibility of their testimony---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 was unanimous with regard to the arrest of the accused, place of the occurrence, quantity of the recovered charas and to that extent, the
evidence of the prosecution was also inspiring confidence ---No proof of enmity with the
complainant and the prosecution witnesses had been brought on record---Competence of prosecution witnesses being officials was rightly believed---Accused failed to produce any
tangible material to rebut the trustworthy and confidence inspiring evidence of the prosecution witnesses ---Circumstances established that the prosecution had success fully
proved the guilt of the accused---Appeal against conviction was dismissed accordingly.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(b) ---Criminal Procedure Code (V of 1898), S. 103--- Possession of narcotics ---
Appreciation of evide nce---Non -association of private witnesses at the time of arrest of
accused and recovery of narcotics ---Scope ---Prosecution case was that 520 grams of baked
charas was recovered from personal possession of the accused ---No private person was
joined in reco very proceedings except Police Officials ---Application of S.103, Cr.P.C., had
been excluded by S. 25 of the Act, 1997 in narcotic cases --- Appeal against conviction was
dismissed accordingly.
Zafar v. The State 2008 SCMR 1254 rel.
(c) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(b) --- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2) ---
Possession of narcotics ---Appreciation of evidence ---Benefit of doubt ---Chemical analysis ---
Delay of four days in sending samples of c ontraband for analysis ---Effect ---Prosecution case
was that 520 grams of baked charas was recovered from personal possession of the accused--
-Parcel was sent to the chemical examiner with delay of four days and it was kept at police
station hence that the same was not in safe custody ---Record showed that the alleged
recovery was effected on 23.07.2020 and the parcel was received by the Forensic Science Laboratory on 27.07.2020---Although there was a minor delay in sending the parcel to the Chemical Examiner but the Rules in that respect were directory and not mandatory--- Even
otherwise there was nothing on record to establish that the said parcel was ever tampered with rather the evidence led by the prosecution established that the parcel received by the said analyst remained intact ---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 prosecution case because Rr. 4 & 5 of the Control of Narcotic Substanc es (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--- Report of Forensic Science
Laboratory further provided that after conducting a chemical test with complete protocol (description thereof were available in Forensic Science Laboratory Report), the same had been found charas ---Circumstances established that the prosecution had successfully proved
the guilt of the accused ---Appeal against convic tion was dismissed accordingly.
Muhammad Sarfaraz v. The State and others 2017 SCMR 1874; Shah Muhammad v.
The State 2012 SCMR 1276 and Tariq Mehmood v. The State through Deputy Attorney General, Peshawar PLD 2009 SC 39 rel.
Jadain Dashti for Appellant.
Sudheer Ahmed, D.P.G. for the State.
Date of hearing: 4th February, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .---This Jail Appeal under section 48 of Control of
Narcotics Substance Act, 1997 (hereinafter "the Act") has been filed through Superintendent Central Prison Mach against the judgment dated 21.12.2020 (hereinafter "the impugned Judgment") passed by the learned Special Judge under the CNS Act, 1997 Bhag at Dhadar in case FIR No. 52 of 2020 dated 23.07.2020 under section 9- b of the Act of Poli ce Station
Saddar Mach whereby the appellant Muhammad Ameen son of Rindan has been convicted under section 9- b of the Act and sentenced to suffer Rigorous Imprisonment for one year and
six months with fine of Rs.11,000/ - and in default whereof to further undergo Simple
Imprisonment for four months with benefit of section 382- B, Cr.P.C.
2. Brief facts of the case are that on 23.07.2020 the complainant Pir Bakhsh SI/SHO
registered the aforesaid FIR with the averments that on the fateful day he received spy information to the effect that one Muhammad Ameen Rahija is selling Charas in an empty
quarter of Railway Colony near Rehmania Masjid. On receipt of the said information, the
complainant along with other police personnel immediately reached there where they found a
person in an empty quarter, who on seeing the police tried to escape away. But was apprehended and on search 520 grams of baked charas were recovered from a quarter in a plastic bag and same were sealed in a parcel and taken into possession. Hence, the crime
report.
3. On completion of investigation, challan of the case was submitted before the trial
Court, whereby he was charge sheeted to which he did not plead guilty and claimed trial. The prosecution in order to substantiate its case produced and examined four witnesses in all,
whereafter the statement of the accused was recorded under section 342, Cr.P.C, wherein he professed his innocence. The accused opted not to record his statement on oath as envisaged under section 340(2), Cr.P.C. nor produc ed any evidence in his defense.
4. The trial court, after conclusion of the trial, found the appellant guilty of the charge
and while recording his conviction, sentenced him as mentioned above. Hence, this appeal.
5. We have considered the worthy arguments advanced by the learned counsel for the
appellant as well as learned APG and carefully scanned the material available on the record.
6. It has borne out from the record that 520 grams Charas were recovered from personal
possession of the appellant and sam e were taken into possession through recovery memo and
sealed into parcel on the spot.
7. While going through the prosecution evidence, especially the statement of Pir Bakhsh
Bugti SI/SHO (PW -1) who is complainant of the case and seizing officer, Nisar Ahm ed Head
Constable (PW -2) who is marginal witness of the recovery memo (Ex.P/2- A) and member of
the police party. In his presence the alleged Charas was recovered from the accused. Tariq Ameer Head Constable (PW- 3) who is the Head Mohrar of the police stati on to whom the
investigation officer handed over the parcel and who kept the same in Malkhana after registering the same in Register No.19. Muhammad Qasim ASI (PW -4) who conducted
investigation of the case. 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 unanimous with regard to the arrest of the accused, place of the occurrence, quantity of the recovered Charas and to tha t extent, the evidence of the
prosecution is also inspiring confidence.
8. 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 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 reluctance 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, no 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 any previous ill -
will o r enmity with the appellant whereby they could have been falsely nabbed and charged
for the possession of the 520 grams Charas.
10. The next contention of the learned counsel for the appellant/accused was that the
parcel was sent to the chemical examiner, with delay of four days and it was kept at police
station, hence cannot be said that the same was in safe custody. It has been noticed that alleged recovery was affected on 23.07.2020 and the parcel was received by the FSL on 27.07.2020. Although there was a minor delay in sending the parcel to the chemical examiner
but the rules in this respect are directory and not mandatory. Even otherwise there is nothing on record to establish that the said parcel was ever tampered with rather the evidence led by the p rosecution established that the parcel received by the said analyst remained intact. Even
otherwise, dispatching of sample beyond 72 hours days 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 (Government 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.
Guidance in this respect can be sought from Muhammad Sarfaraz v. The State and others (2017 SCMR 1874), Shah Muhammad v. The State (2012 SCMR 1276) and Tariq Mehmood v. The State through Deputy Attorney General, Peshawa r (PLD 2009 Supreme Court 39).
Even otherwise on the day of recovery the parcel was handed over to PW -3 Tariq Ameer
Head Constable who is Head Mohrar of the police station. He after registering the same in Register No.19 in safe custody and on 27.07.2020 he handed over the parcel to Muhammad Qasim ASI (PW -4) who deposited the same to the FSL laboratory. The name of PW -4
Muhammad Qasim appeared in the FSL report Ex.P/4- B, according to which the parcel was
received through ASI Muhammad Qasim. Under such circu mstances the safe custody of the
parcel is proved.
11. The report of FSL (Ex.P/4- B) further provided that after conducting a 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
prosecution has ably discharged the initial onus of proof. If once the prosecution leads ample evidence and discharge the initial onus of proof then it is the accused who has to diminish the
presumption of guilt against him as being the special law, section 29 of the CNSA, 1997, gives rise to a presumption of guilt against the accused. In view of recovery of huge quantity,
we can safely observe that there is no possibility of fal se implication of the appellant in the
offence entailing stringent punishment, especially in absence of any proven enmity. We have
noticed that in rebuttal to overwhelming prosecution evidence, the appellant has failed to produce any tangible material to r ebut the trust worthy and confidence inspiring evidence of
the prosecution witnesses.
We are, thus, of the considered view that prosecution has successfully established the
guilt of the accused/ appellant and he was rightly convicted by the learned trial court. The
sentence awarded to the appellant duly commensurate with his Act. Resultantly this appeal fails and is dismissed. The conviction and sentence of the appellant is, thus, maintained.
JK/54/Bal. 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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