2025 Y L R 833
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JK
JAFFAR MEHMOOD ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 483 of 2022, decided on 27th July, 2023.
(a) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substances ---Appreciation of evidence ---Recovery of
narcotic substance from exclusive possession of accused not proved---Prosecution case
was that 25 -kilograms charas was recovered from the possession of the accused ---
Complainant reiterated what he had mentioned in his murasila ---Recovery witness
deposed in similar lines as deposed by complainant ---Said witness produced recovery
memo. of parcels Nos. 1 to 20 and charas and a brown bag---Story of the prosecution was highly improbable, which did not appeal to a prudent mind--- Question was as to
why the appellant waited for the police to come and arrest him with the narcotic, when he had enough time to push away the narcotic towards the front seat or at the back to
save himself, rather than being caught red -handed ---As the packets of charas were not
recovered from his physical possession, the prosecution had failed to prove the exclusive possession of the narcotic from the appellant ---Appeal against conviction was allowed,
in circumstances.
Fayyaz v. The State 2022 MLD 1452 and Rehmatullah v. The State 2011 YLR 2477
rel.
(b) Control of Narcotic Substances Act (XXV of 1997) ---
----S. 9(c) ---Possession of narcotic substances ---Appreciation of evidence ---Safe custody
of recovered narcotic substance and its transmission to laboratory for analysis not established ---Prosecution case was that 25 -kilograms charas was recovered from the
possession of the accused ---Record reflected that allegedly the recovery was made on
04.02.2022, but the samples of the contraband were received in the office of Forensic Science Laboratory on 07.02.2022---- Prosecution failed to offer any explanation, making
the recovery and Forensic Science Laboratory Reports cloudy---Appeal against conviction was allowed, in circumstances.
State v. Imam Bakhs 2018 SCMR 2039 and Khairul Bashar v. State 2019 SCMR 930
rel.
Muhammad Hassan Bugti for Appellant.
Abdul Mateen,DPG for the State.
Date of hearing: 15th June, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Appellant Jaffar Mehmood has assailed the
judgment dated 28th September, 2022 ("impugned judgment") authored by learned Additional Sessions Judge -CNS, Kuchlak ("Trial Court"), whereby he was convicted under
Section 9 (c) of Control of Narcotic Substances Act, 1997 ("Act of 1997") and sentenced to suffer life imprisonment R.I with fine of Rs.100,000/ - (rupees one hundred thousand) and in
default of payment of fine to further undergo three months S.I, but with the premium of Section 382- B of Cr.P.C., emanating from a case vide FIR No.10/2022 (Ex.P/5- A) registered
with police station new Kuchlak lodged by complainant SI Zamin Hussain Shah (PW -1)
against the appellant for possessing 24 kgs of charas recovered from a bag held by the
appellant in his lap, while travelling in a bus.
2. Crime report ibid was lodged on the strength of a murasila (Ex.P/1- A) with the
allegations that on 04.02.2022 SI Zamin Hussain Shah complainant (PW -1) along with police
contingent were on patrolling duty, whereof on a tip off, regarding smuggling of narcotics in a bus a blockade at Quetta Chaman Road near police station new Kuchlak was held, where at about 03:45 pm, a bus was intercepted, which was searched; a brown bag was recovered from the lap of the appellant, containing 24 kgs of baked charas wrapped in white plastic.
After necessary investigation, the appellant was sent up to the Trial Court to face
deeds of his culpability, where on commencement of the trial, the appellant entered the plea of denial, thus, the prosecution in order to bring home the charge, produced as many as five witnesses, and after close of the prosecution side, the appellant refuted the allegations so brought as envisaged under section 342 of Cr.P.C., whereafter, the appellant neither stepped into the witness box to depose on oath nor produced any evidence in his defence, hence on conclusion of the trial, the appellant was convicted and sentenced in the terms mentioned in para supra.
3. Mr. Muhammad Hassan Bugti, learned counsel for the appellant inter alia contended
that the prosecution has not only failed to prove the recovery, but has also remained unsuccessful to establish the safe custody and transmission of the narcotics. He also
submitted that there are material contradictions in the prosecution witnesses which has made
the case highly doubt full but the learned trial court has failed to appreciate this aspect of the
case, henceforth prayed for acquittal of the appellant.
Conversely, Abdul Mateen learned DPG rebutted the contention of learned counsel
for the appellant and urged that the prosecution has proved the case to the hilt, including the safe custody and transmission and as such the trial court, while appreciating the evidence has
rightly held the appellant guilty of the charge. He denied that there are material contradictions which has made the case doubtful, thus requested for dismissal of the appeal.
4. Heard. Record vetted.
5. The prosecution to prove the recovery produced SI Zamin Hussain Shah complainant
(PW -1), who reiterated what he had mentioned in his murasila (Ex.P/1- A). According to him,
on 04.02.2022, on a tip off at check- point, apprehended the appellant holding a bag in his
lap, whereupon 20 packets of baked charas, each containing 1200 grams, total 24 kgs were recovered, whereof 10 grams from each packet were separated for chemical analysis and sealed in parcel No.1 to 20, whereas the remaining 23.800 kgs were sealed in parcel No. 1A -
to 20- A. Recovery witness Gul Muhammad ASI (PW- 4) deposed in similar lines as deposed
by Zamin Hussain Shah (PW -1). He produced recovery memo. of parcels No.1 to 20 as
(Ex.P/4 -A) and charas and brown bag as Art.P -1 to Art.P -61.
6. The story of the prosecution is highly improbable, which does not appeal to a prudent
mind that as to why the appellant would wait for the police to come and arrest him with the narcotics, when he had enough time to push away the narcotics towards the front seat or at the back to save himself, rather to be caught red -handedly. As the packets of charas were not
recovered from his physical possession, thus we believe that the prosecution has failed to prove the exclusive possession of the narcos from the appellant. In this regard, our view finds support from the dicta expounded in the cases of 'Fayyaz v. The State' (2022 MLD 1452) and 'Rehmatullah v. The State' (2011 YLR 2477).
7. As far as safe custody and transmission of the narcotics from the check -point, which
is the place of recovery and its onward transmission to the Federal Narcotics Testing Laboratory Balochistan, Quetta ("FNTL, Quetta") is concerned, we have noted several infirmities and inconsistencies, which have persuaded us to believe that the prosecution has miserably failed to prove the safe custody and transmission through tangible and confidence inspiring evidence, which makes the prosecution story doubtful. Recor d further reflects that
allegedly the recovery was made on 04.02.2022, but the samples of the contraband were received in the office of FNTL, Quetta on 07.02.2022, whereof the prosecution failed to offer
any explanation, making the recovery and FSL reports cloudy. In this regard, our view finds
support from the cases of 'State v. Imam Bakhsh' (2018 SCMR 2039) and 'Khairul Bashar v. State' (2019 SCMR 930).
8. For the forgoing reasons, the appeal is allowed, and in consequence thereof the
impugned judgment dated 28.09.2022 passed by the Trial Court is set aside and appellant Jaffar Mehmood son of Arshad Mehmood is acquitted of the charge.
The appellant serving sentence be set free, if not incarcerated in any other case.
JK/2/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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