2024 Y L R 2297
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
ABDUL JABBAR and another ---Appellants
Versus
The STATE---Respondent
Criminal Appeal No. (s)128 and Criminal Jail Appeal No. (s)13 of 2022, decided on 12th
October, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----Ss. 9(b) & 9(c) ---Possession of narcotic substance ---Appreciation of evidence ---Safe
custody and transmission of the narcotic substance proved---Conviction altered from S.
9(c) to S. 9(b) of Control of Narcotic Substances Act, 1997---Prosecution case was that 40-kilogram charas was recovered from the vehicle of the accused persons ---To
substantiate the safe custody and transmission of the narcotic substance, the prosecution produced Head Constable, who was in- charge malkhana---Said witness testified that on
11.01.2022 Investigating Officer handed over to him two parcels containing recovered charas and articles, which he deposited in the malkhana and made entry in Register No.
19---Said witness further testified that on 13.01.2022, he handed over parcel No.1 to Head Constable for onward transmission to the Narcotics Testing Laboratory for chemical analysis ---Furthermore, Investigating Officer also corroborated the testimony of all the
said prosecution witnesses ---Investigating Officer produced the Narcotics Testing
Laboratory Report, which affirmed the material to be Hashish Pukhta ---Said witnesses
were cross -examined on various aspects in order to discredit them as well as to put dent
pertaining to the recovery and safe custody and transmission of the narcotic substances, but such attempt remained unsuccessful ---Circumstances established that the prosecution
had successfully proved the recovery of the narcotics from accused "AJ", including its safe custody and transmission from the place of recovery to the malkhana and then to the office of Narcotics Testing Laboratory ---However, the prosecution had failed to
substantiate that the entire suspected 40 -kgs material was charas ---Prosecution claimed
that 40- packets of charas, each containing one packet were recovered from a CNG
cylinder lying in the boot of a car, meaning thereby that each packet of the suspected material weighed one kg, which were examined by the Narcotics Testing Laboratory, which observed in its report that during examination 500 grams of suspected material was consumed in the process of testing out 40- kgs of charas ---However, the Narcotics Testing
Laboratory Report did not show as to whether from each packet samples were drawn and examined or one packet weighing one kg was consumed during the chemical analysis, making the report ambiguous, which at best could be believed only to the extent of 1- kg of
charas ---In such circumstances, the prosecution had substantiated the indictment against
the accused "AJ" only to the extent of 1- kg of charas without any glimpse of doubt, thus
he deserved to be convicted and sentenced to such extent only---Corollary, appeal was partly allowed and keeping in view the peculiar circumstances of the case, the conviction and sentence awarded to the accused "AJ" under S.9 (c) of the Act of 1997 was altered and converted into S.9 (b) of the Ac t of 1997 and consequent thereto he was convicted and
sentenced to suffer two (2) years RI.
Ameer Zeb v. The State PLD 2012 SC 380 rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Benefit of doubt ---Role of co -
accused ---No knowledge of narcotic substances is vehicle ---Prosecution case was that 40 -
kilogram charas was recovered from the vehicle of the accused persons ---So far as the case
of the appellant "MH" was concerned, his case was distinguishable as he was found to be sitting alongside the driver -accused "AJ" ---Prosecution had failed to establish that he had
any knowledge about the narcotic substance concealed in the CNG cylinder lying in the
boot of the car ---Thus, prosecution had failed to prove the indictment against accused
"MH" ---Appeal against the conviction of accused "MH" accused was allowed.
Hussain Shah v. State PLD 202 SC 132 rel.
Barrister Zahoor Hassan Jamot for Appellant (in Criminal Appeal No. (s)128 of
2022).
Muhammad Naeem Kakar, Additional Prosecutor General for the State (in Criminal
Appeal No. (s) 128 of 2002)
Shah Fahad Mengal for Appellant (in Criminal Jail Appeal No. (s)13 of 2022).
Muhammad Naeem Kakar, Additional Prosecutor General (in Criminal Jail Appeal
No. (s)13 of 2022).
Date of hearing: 11th September, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Being dissatisfied with the judgment dated
16.11.2022 handed down by learned Special Judge CNS -Sessions Judge, Naseerabad at Dera
Murad Jamali ("Trial Court") in CNS Case No.04/2022 vide FIR No.02/2022 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 ("Act of 1997") at P.S.
Saddar Dera Murad Jamali by complainant SI/CIA Syed Haider Shah (PW- 1) against the
appellants for possessing 40- packets of backed charas, recovered from CNG cylinder kit
found in the boot of a 2.OD car bearing No.AFH -270.
As the titled appeals emanate from a common judgment, therefore, both these appeals
are being decided through this consolidated judgment.
2. Brief facts of the prosecution case as gleaned from the FIR ibid are that on
11.01.2022, complainant Syed Ghulam Haider Shah SI (PW -1) was on patrol duty along with
other police officials reached National Highway Road near Haji Zafarullah Jamali Patrol Pump made a blockade on a tip off and started checking the vehicles; at 3:15 pm a white colour 2.0D car bearing No.AFH -270 coming from Quetta was intercepted, wherein
appellants Abdul Jabbar was found seated on the driving seat, whereas Mujahid Hussain was sitting beside him. On opening the back seat of the car 40- packets weighing 40- kgs of charas
were found fitted in the CNG kit lying in the boot of the car, which were taken into possession.
3. After necessary investigation, the appellants were sent up to the trial court to face
deeds of their culpability, where on commencement of the trial, the appellants entered the plea of denial, hence the prosecution in order to bring home the charge produced as many as eight witnesses and after close of the prosecution side, the appellants refuted the allegations so brought and confronted as envisaged under section 342 of Cr.P.C, whereafter the appellants neither stepped into the witness box to depose on oath nor produced any evidence in their defence, thus on conclusion of the trial the appellants were convicted and sentenced in the terms mentioned in the para supra.
4. Barrister Zahoor Hassan Jamot, learned counsel for the appellants inter alia contended
that the impugned judgment deserves to be set at naught as the same is result of misreading of evidence. Added further that learned trial judge has failed to appreciate the evidence in its true perspective, particularly, failure of the prosecution to establish safe custody and transmission of the contraband, but the Trial Court did not consider such essential aspect of the case and has drawn its conclusion contrary to the evidence, which has made the impugned judgment a nullity in the eyes of law, as such, prayed to allow the appeal and acquit the appellants of the charge.
Mr. Shah Fahad Mengal, learned counsel for appellant Mujahid Hussain adopted the
arguments of learned counsel for appellant Abdul Jabbar, however, added that the
prosecution has failed to prove the conscious possession and knowledge of the narcotics of
appellant Mujahid Hussain, pertaining to the recovery of narcotics, which fact alone merits the impugned judgment to be set at naught, entitling him for acquittal.
Conversely, Mr. Muhammad Naeem Kakar, learned APG vigorously resisted the
arguments advanced by the counsel for the appellants and urged that the Trial Court has well appreciated the evidence on record, which does not call for interference. He augmented his arguments that the safe custody and transmission has also been proved beyond any shadow of doubt, which does not in any manner vitiate the trial and as such requested for dismissal of the appeal.
5. Heard. Record sussed out.
6. The case set up by the prosecution is that on 11.01.2022 appellant Abdul Jabbar was
sitting in the vehicle bearing No.AFH -270, whereas appellant Mujahid Hussain was sitting
beside him and when their vehicle was searched 40 packets of charas were found fitted in the CNG cylinder lying in the boot of the said vehicle. The case of the prosecution mainly relies upon the testimony of complainant Syed Ghulam Haider Shah SI -CIA (PW -1), Shaukat Ali
Head Constable (PW -3) regarding recovery of the narcotics, whereas the prosecution banks
upon the testimony of Mehboob Ali HC (PW -4), Hazoor Bakhsh HC (PW -5), who is witness
to the disclosure memo. (Ex.P -5-A) of co -accused Mujahid Hussain, Khalid Raza HC (PW- 6)
and Akhtar Ali Soomro Investigating Officer ("IO") (PW -8) in order to establish the safe
custody and transmission of the narcotics from the place of recovery to the malkhana and
then onward transmission to the office of Federal Narcotics Testing Laboratory Balochistan,
Quetta ("FNTL, Quetta").
7. Complainant Syed Ghulam Haider Shah SI (PW -1) reiterated what he had stated in his
report (Ex.P/1- A), whereupon FIR No. 02/2022 (Ex.P/8- A) was registered, affirming the
recovery of 40 packets of charas, each weighing 1 -kg, total 40 -kgs on 11.01.2022 at about
03.15 pm at National Highway Road near Haji Zafarullah Jamali Patrol Pump during a
blockade from a 2.OD car bearing No.AFH -270 coming from Quetta, whereof parcel Nos.1
and 2 were prepared, which fact has been corroborated by recovery witness Shaukat Ali (PW -3). He produced sealed parcel No.1 as Art.P/1, specimen of seal as Art.P/2 and 39
packets of baked charas as Art.P/3 to Art.P/41. He produced recovery memo. of 2.OD Car (Ex.P/3 -B) and produced the same as Art.P/42. He also produced memo. of personal search
of accused persons (Ex.P/3 -c), sealed parcel No.2 as Art.P/43, sample of seal as Art.P/44. He
further produced cash amount of Rs.3000/ - as Art.P/45, one Itel mobile phone as Art.P/46,
original CNIC of appellant Abdul Jabbar as Art.P/47, whereas one OPPO mobile phone as Art.P/48, original CNIC as Art.P/49, cash amount of Rs.6300/ - (Ex.P/3- D) as Art.P/50
recovered from appellant Mujahid Hussain. Both the said witnesses were cross -examined
extensively, but nothing beneficial could be extracted from their cross -examination, which
went un- shattered.
8. To substantiate the safe custody and transmission of the narcotics, the prosecution
produced Mehboob Ali HC (PW -4), who was in- charge malkhana. He testified that on
11.01.2022 IO Akhtar Ali Somro (PW -8) handed over him parcel Nos.1 and 2, containing
recovered charas and articles, which he deposited in the malkhana and made entry in Register No. 19. He further testified that on 13.01.2022, he handed over back parcel No.1 to Khalid Raza HC (PW- 6) for onward transmission to the FNTL, Quetta for chemical analysis
received back the same, which he (PW- 4) deposited in the malkhana. Furthermore, IO (PW -
8) also corroborated the testimony of all the said prosecution witnesses. He produced the FNTL report (Ex.P/8 -F), which affirms the material to be Hashish Pukhta. PW- 1, PW -3 and
malkhana in -charge PW -4 were cross -examined on various aspects in order to discredit them
as well as to put dent pertaining to the recovery and safe custody and transmission of the narcotics, but remained unsuccessful.
9. As far as the disclosure of Mujahid Hussain in the presence of Hazoor Bakhsh HC (PW -
5) is concerned, the recovery has not been effected in consequence of such disclosure rather the alleged disclosure has been prepared on 20.01.2022 after recovery, thus, no reliance can be placed upon it for being inadmissible and having no evidentiary value.
10. In wake of the above evidence, we have irresistibly reached to a conclusion that the
prosecution has successfully proved the recovery of the narcotics from appellant Abdul Jabbar,
including its safe custody and transmission from the place of recovery to the malkhana and then to the office of FNTL, Quetta. However, the prosecution has failed to substantiate that the entire suspected 40 -kgs material is charas. The prosecution claims that 40 -packets of charas,
each containing one packet were recovered from a CNG cylinder lying in the boot of a 2.OD
car, meaning thereby that each packet of the suspected material weighed one kg, which were
examined by the FNTL, Quetta, which observed in its report that during examination 500
grams of suspected material was consumed in the process of testing out of four 40- kgs of
charas. However, the FNTL, Quetta report does not show that as to whether from each packet samples were drawn and examined or one packet weighing one kg was consumed during the chemical analysis, making the report ambiguous, which at best can be believed only to the extent of 1- kg of charas. In order to support our view, we would like to refer to the case of
"Ameer Zeb v. The State" (PLD 2012 SC 380), wherein it was held that from each packet a separate sample must be secured for chemical analysis and if such protocol is not observed then the consolidated sample drawn from each packet shall represent only one packet of
narcotics.
11. In view of the above, the prosecution has substantiated the indictment against the
appellant Abdul Jabbar only to the extent of one 1- kg of charas without any glimpse of
doubt, thus he deserves to be convicted and sentenced to such extent only.
12. So far as the case of the appellant Mujahid Hussain is concerned, whose case is
distinguishable as he was found to be sitting along side the driver -appellant Abdul Jabbar. The
prosecution has miserably failed to establish that he had any knowledge about the narcotics
having been concealed in the CNG cylinder lying in the boot of said car. In this regard, we are
fortified with the view expounded in the case of "Hussain Shah v. State (PLD 2020 SC 132). Relevant excerpt follows as under;
"6. As far as Abdul Sattar appellant is concerned it was alleged by the prosecution that he was a cleaner and a helper of his co -convict namely Hussain Shah and he was
travelling in the same vehicle when the said vehicle was intercepted by the raiding party. It has been pointed out before us that that according to the evidence brought on the record Abdul Sattar appellant also knew about existence of a cavity in the body of the relevant vehicle but nothing had been said by any prosecution witness about the said appellant having the requisite knowledge about availability of narcotic substance in such cavity of the vehicle. As a matter of fact no evidence worth its name had been brought on the record to establish that the said appellant was conscious about availability of narcotic substance in a secret cavity of the relevant vehicle in which he was travelling along with its driver. The law is settled by now that if the prosecution fails to establish conscious possession or knowledge in that regard then a passenger cannot be convicted solely on the basis of his availability inside a vehicle at the relevant time. This appeal is, therefore, allowed to the extent of Abdul Sattar appellant, his conviction and sentence recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. Abdul Sattar appellant shall be released from the jail forthwith if not required to be detained in connection with any other case."
[Emphasis supplied]
13. Thus, we believe that the prosecution has miserably failed to prove the indictment
against appellant Mujahid Hussain and have concluded that the reasoning assigned by the trial court to his extent are based on misreading of evidence as well as improper appraisal of evidence.
14. Corollary, Criminal Jail Appeal No.(s) 128 of 2022 is partly allowed and keeping in
view the peculiar circumstances of the instant case, the conviction and sentence awarded to the appellant Abdul Jabbar vide impugned judgment dated 16.11.2022 under section 9 (c) of the Act of 1997 is altered and converted into section 9 (b) of the Act of 1997 and consequent thereto he is convicted and sentenced to suffer two (2) years RI with a fine of Rs.20,000/ -
(twenty thousand) and in default thereof to further undergo two (2) months SI with the premium of section 382 -B of Cr.P.C.
As far as Criminal Jail Appeal No.(s) 13 of 2022 filed by appellant Mujahid Hussain
is concerned, same is allowed and sentence awarded to him by the trial court vide impugned
judgment dated 16.11.2022 is set -aside and as such he is acquitted of the charge, extending
him the premium of benefit of doubt, who be released forthwith, if not required in any other case.
JK/68/Bal. Sentence altered.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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