2024 Y L R 758
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
NAQEEBULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 324 of 2022, decided on 21st June, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence ---Benefit of doubt ---
Recovery doubtful --- Prose -cution case was that 20 kilograms charas was recovered from the
secret cavities of the vehicle driven by the accused ---Recovery witness testified in line with
the testimony of Seizing Officer and deposed that 20 kgs of charas were recovered from the
cavities of the car, which were taken into possession ---Said witness did not state in his
examination -in-chief that where and in which manner the narcotics were concealed in the
cavities ---Prosecution during trial neither showed the cavities made in the car to the trial
Judge nor to the adversarial parties to see and examine as to how the charas was concealed in the cavities, which made the recovery doubtful ---Circumstances established that the
prosecution had failed to prove the recovery--- Appeal was accordingly allowed.
Abdul Baqi v. State 2020 PCr.LJ 321; Aslam Khan v. State 2021 PCr.LJ 1018 and
Muhammad Sajjad v. State 2023 YLR 408 rel.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c) ---Possession of narcotics ---Appreciation of evidence--- Benefit of doubt ---Safe
custody of narcotic and its transmission for chemical analysis doubtful ---Prosecution case
was that 20 kilograms charas was recovered from the secret cavities of the vehicle driven by the accused ---Seizing Officer as well as recovery witness had failed to mention about arrival
of Investigating Officer, in respect of handing over the recovered charas to him or otherwise, which put dent into the safe custody and handing over the narcotics from the place of occurrence to the Malkhana---Head Constable/witness stated that on 19.12.2020 Investigating Officer came to his office and handed over parcels pertaining to samples as well as parcels pertaining to remaining charas, whereof he made entry in Register No.19 and deposited the same in Malkhana for its safe custody--- Surprisingly, said witness did not
mention in his statement that when and to whom he handed over the samples of narcotics for onward transmission to the Narcotics Testing Laboratory for chemical analysis ---Similarly,
Investigating Officer though stated to have handed over the said parcels of narcotics pertaining to samples and remaining parcels of narcotics to the Malkhana in -charge on the
fateful night but did not mention as to when, how and in which manner he received back the parcels from Malkhana in -charge for onward transmission to the laboratory in his
examination -in-chief, which created doubt in the safe custody and transmission of the
narcotics and its samples ---Circumstances established that the prosecution had failed to
prove the safe custody and transmission of the contraband from the place of recovery to the Malkhana and then to the laboratory ---Appeal was accordingly allowed.
Mehboob Ali Muhammad Hassani for Appellant.
Habibullah Gul, Additional Prosecutor General (APG) for the State.
Date of hearing: 19th April, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Appellant has called in question the judgment
dated 20.06.2022 ("impugned judgment") authored by Special Judge of the court constituted
under the Control of Narcotic Substances Act, 1997 Additional Sessions Judge -I Sariab
Division, Quetta ("Trial Court") emanating from an FIR No.144 of 2020 dated 19.12.2020 registered within the remits of Police Station New Sariab Quetta under section 9(c) of Control of Narcotic Substances Act, 1997 ("Act of 1997") for recovery of 20 kgs of charas
concealed in secret cavities of 2.OD car bearing Registration No. ICT -HA/064 driven by
appellant Naqeebullah, who was booked and after denial of indictment during trial, the
prosecution produced seven witnesses so as to bring home the charge; appellant was examined as contemplated under section 342 of the Criminal Procedure Code, 1898 ("Cr.P.C."), who denied the allegations by pleading innocence and also stepped into the witness box in his defence as DW- 1 and produced Muhammad Umar (DW -2).
Thus, after a full -fledged trial, the Trial Court returned a verdict of guilt, convicting
and awarding sentence to the appellant under section 9(c) of the Act of 1997 to suffer life imprisonment and to pay fine of Rs.100,000/ -; in default to further undergo for a period of
six months SI with the premium of section 382- B, Cr.P.C.
2. Mr. Mehboob Ali Muhammad Hassani, learned counsel for the appellant inter alia
contended that the alleged recovery of narcotics has been imposed and foisted upon the appellant, which is otherwise highly doubtful and that the prosecution has also failed to establish the safe custody and transmission of the contraband i.e., beginning from making the parcels on the spot to the Malkhana and onward tranmission to the office of Federal Narcotics Testing Laboratory, Balochistan Quetta ("FNTL Quetta"). According to him, the prosecution witnesses have contradicted each other on material points i.e., recovery, sending murasila to the police station, making parcels and transmission, deposit of narcotics in the
Malkhana and its transmission to the FNTL. He emphasized that the confidence inspiring defence evidence has not been taken into account by the learned trial judge, which has made the impugned judgment perverse, henceforth, requested for acquittal of the appellant.
On the contrary, Mr. Habibullah Gul, learned APG strongly opposed the contentions
so put forth by learned counsel for the appellant. He submitted that the prosecution has proved the case to the hilt by an overwhelming evidence, corroborated by the FNTL report as well as endorsed by the Trial Court, thus, requested for dismissal of the appeal.
3. Heard. Record pondered upon with the able assistance of learned counsel for the
adversarial parties. Haji Abdul Hayee SI -complainant (PW- 5) on 19.12.2020 on a tip off at
12:35 a.m intercepted a car 2.OD Saloon bearing No.ICT -HA/064 driven by appellant
Naqeebullah, which was searched and recovered 20 packets of charas, each weighing 1000-
grams, total 20- kgs of charas concealed in secret cavities, whereof he separated 5 -grams
from each packet and prepared parcel Nos.1 to 20 for chemical analysis, whereas the remaining 19 -kgs charas was put in parcel Nos.1 -A to 20- A. He neither stated in his murasila
(Ex.P/5 -A) nor in his examination- in-chief before the court that what kind of cavities and
where were the cavities made, wherefrom the narcotics were recovered.
4. Raja Nafees Ahmed (PW- 1) is the recovery witness of narcotics. He testified in line
with the testimony of Seizing Officer (PW -5) and deposed that 20 kgs of charas were
recovered from the cavities of the car, which were taken into possession through recovery memo (Ex.P/1 -A). He also stated to have separated 5 -grams from each packet for chemical
analysis. He produced the parcels Nos.1 to 20 as Art.P/1 to Art.P/20. He also did not state in his examination- in-chief that where and in which manner the narcotics were concealed in the
cavities. He produced the car as Art.P/61, which was secured through recovery memo (Ex.P/1 -A). The prosecution during trial neither showed the cavities made in the car to the
learned Trial Judge nor to the adversarial parties to see and examine as to how the charas was concealed therein the cavities, which makes the recovery cloudy. Our view finds support from the cases of 'Abdul Baqi v. State' (2020 PCr.LJ 321), 'Aslam Khan v. State' (2021 PCr.LJ 1018). Relevant portion whereof is reproduced as infra;
"Even during trial the alleged fule tank has not been produced before the court for exhibition of the same in support of prosecution case, so when the fuel tank from which the contraband was recovered has not been produced, then how it could be proved that the contraband was recovered from the same. It is also not mentioned anywhere that how and through which tool, the said fuel tank was opened as according to PW.5 Lal Gul SI, the contraband was in shape of slabs, so how it was
recovered from the fuel tank having a small hole."
Likewise, in the case of 'Muhammad Sajjad v. State' (2023 YLR 408), the above view
was further endorsed, the excerpt thereof is also reproduced herein below;
"6. Likewise, the patrol -tank from which the illegal stuff was allegedly recovered
was neither produced before the court nor it was exhibited to confirm as to whether it
was having the capacity to contain such a huge quantity of narcotics, which aspect of the case also makes the story of prosecution doubtful,"
5. Coming to the safe custody and transmission, it may be observed that the Seizing
Officer (PW -5) as well as recovery witness (PW- 1) have failed to mention about arrival of
Maqsood Sajid SI -Investigating Officer ("IO") (PW -6), in respect of handing over the
recovered charas to him or else, which puts dent into the safe custody and handing over the narcotics from the place of occurrence to the Malkhana.
Muhammad Hassan HC (PW -3) stated that on 19.12.2020 Maqsood Sajid SI (PW -6)
came to his office and handed over parcel Nos.1 to 20 pertaining to samples as well as parcel Nos.1- A to 20- A pertaining to remaining 90 -kgs of charas, whereof he made entry in
Register No.19 and deposited the same in Malkhana for its safe custody. Surprisingly, he did
not mention in his statement that when and as to whom he handed over back the samples of
narcotics for onward transmission to the Federal Narcotics Testing Laboratory, Balochistan
Quetta ("FNTL Quetta") for chemical analysis. Similarly, IO (PW -6) though stated to have
handed over the said parcels of narcotics pertaining to samples and remaining parcels of narcotics to the Malkhana in -charge (PW- 3) on the fateful night but did not mention as to
when, how and in which manner he received back the parcels from Malkhana in -charge (PW-
3) for onward transmission to the laboratory in his examination- in-chief, which creates doubt
in the safe custody and transmission of the narcotics and its samples.
6. Adverting to the disclosure, albeit no reliance can be made upon such disclosure as it
is inadmissible for being hit under Articles 38 and 39 of Qanun- e-Shahadat Order, 1984,
however, the story narrated therein on the other way round leads to the innocence of the appellant as he has pleaded therein that he was unaware of the narcotics and that the car belonged to one Khan Muhammad, who hired him to merely deliver the car. The appellant reiterated the above defence plea in his statement recorded under section 340(2) of Cr.P.C. as well and endorsed by defence witness Muhammad Umar (DW- 2), which inspires confidence
and rings true.
7. In view of the above, we are clear in mind that the prosecution has not only miserably
failed to prove the recovery but also the safe custody and transmission of the contraband from the place of recovery to the Malkhana and then to the office of FNTL. More -so, the
defence plea when kept in juxtaposition with the prosecution story also seems plausible and convincing in the peculiar circumstances of the instant case.
8. Corollary, the appeal is allowed, the impugned judgment of the Trial Court is set -
aside and the appellant is acquitted of the charge.
The appellant is incarceration be set free, if not detained in any other case.
133/Bal. Appeal 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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