PLJ 2022 Cr.C. (Note) 6
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 29--Presumption from possession of illicit articles--Conviction and sentence--Challenge to--Recovery of charas--Hence, in view of Section 29 of Control of Narcotic Substances Act, 1997 if once prosecution is able to bring on record sufficient material in order to discharge initial onus of proof then burden shifts upon accused to prove otherwise--Case property was produced and exhibited as P-I before trial Court and there is no serious challenge to same from other side--Report of Punjab Forensic Science Agency, exhibited was also tendered in evidence, which affirms nature of recovered substance being a narcotic drug, attracting provisions as contained in Section 9 of Control of Narcotic Substances Act, 1997--In criminal cases substitution is a rare phenomenon and in cases where there existed no enmity between accused and witnesses then same is even rarer--Prosecution has produced all relevant witnesses to prove factum of recovery of Charas weighing 1290 grams--In view of material available on record, that prosecution has successfully proved its case against appellant without any shadow of doubt by leading relevant, admissible and cogent and trustworthy evidence, therefore, while maintaining conviction of appellant--Appeal was dismissed. [Para 11 & 12] A & B
Syed Muhammad Jaffar Tayyar, Advocate for Appellant.
Mr. Muhammad Ali Shahab, Deputy Prosecutor General for State.
Date of hearing: 5.11.2018.
PLJ 2022 Cr.C. (Note) 6
[Lahore High Court, Multan Bench]
Present: Sardar Ahmed Naeem and Sadiq Mahmud Khurram, JJ.
NASIR HUSSAIN--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 425 of 2018, heard on 5.11.2018.
Judgment
Sadiq Mahmud Khurram, J.--The appellant Nasir Hussain son of Muhammad Yousaf, Caste Blouch, Resident of Chak No. 19/WB District Vehari, through this appeal has challenged the judgment dated 17.04.2018 passed by the learned Judge Special Court, the Control of Narcotic Substances Act, 1997 District Vehari, whereby appellant was convicted and sentenced for the offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter referred as an Act) to undergo rigorous imprisonment for four years, six months and also directed to pay fine Rs. 20,000/- and in default thereof, he was to further undergo five months simple imprisonment. The appellant was given the benefit available under Section 382-B of The Code of Criminal Procedure, 1898.
2. Precisely the facts necessary, as divulged in the statement of Farooq Ramzan, TSI (PW.2) are as under:
"On 4.1.2018, I alongwith Akram Jamil 1239/C, Muhammad Yasin 465/C, Ali Raza 623/C and Muhammad Siddique PQR while boarding on official vehicle bearing Registration No. 8906/VRJ being driven by Haqnawaz 331/C was present on patrol duty at Pul 19/WB. In the meanwhile at about 9.40 a.m., I received spy information that Nasir Hussain Balouch r/o Chak No. 19/WB was coming from his Dera towards his house and if timely raided he could be apprehended and Charas could be recovered from his possession. On receipt of above said information, I constituted a raiding party and reached pointed place. On the pointing out of informer, I tried to apprehend the person who on seeing the police party tried to slip away but was overpowered by the raiding party. Accused present before the Court disclosed his name Nasir Hussain s/o Muhammad Yousaf Caste Balouch r/o Chak No. 19/WB. I made search of accused and from a blue coloured shopper which accused was holding in his right hand one packet of Charas was recovered where after it was weighed and which came to 1290 grams, accordingly 64.50 grams was separated for the purpose of PFSA and sealed into a parcel whereas rest of the narcotics was sealed separately into another parcel. I affixed seal having monogram of F.R. on both the parcels and took both the parcels i.e. sealed sample parcel and parcel of case property P-1 into possession vide recovery memo Ex.P.B., attested by Akram Jamil 1239/C and Muhammad Yasin 465/C. I drafted complaint Ex.P.A. and sent it to police station through Ali Raza 623/C for formal registration of FIR. After registration of case, Muhammad Mukhtar SI reached spot and conducted remaining investigation. I handed over the custody of accused as well as sealed parcels to Muhammad Mukthar SI. On 07.01.2018, one sealed sample parcel was handed over to me by Muhammad Iqbal 192/MHC for its further delivery to PFSA, Lahore and I deposited the same intact on 08.01.2018 in the concerned laboratory. On 09.01.2018, my statement u/S. 161 was recorded by Muhammad Mukhtar SI."
On the basis of above stated facts, case FIR No. 5/2018 dated 04.01.2018 (Ex.P.A/1) was registered at Police Station Machiwal, District Vehari.
3. After formal investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant was arrayed as an accused. Learned trial Court seized with the matter, framed the charge against all the accused under Section 9(c) of the Control of Narcotic Substances Act, 1997 on 11.04.2018 to which the appellant pleaded not guilty and claimed trial.
4. In order to prove the facts in issue of the case, the prosecution examined as many as four witnesses in toto. Muhammad Iqbal 192/HC, who was officiating as Moharrar at the relevant time was examined as PW.1. He stated that after receiving the complaint Ex.P.A. sent by Farooq Ramzan TSI through Ali Raza 623/C, on his dictation, computer operator prepared computerized copy of FIR Ex.P.A/1 correctly, which was signed by him and his endorsement Ex.P.A/2 was at the bottom of the complaint. He further stated that on the same day, he received two sealed parcels for keeping them in safe custody in Malkhana. He also stated that out of the said two parcels, one of the sealed parcel was handed over to Farooq Ramzan TSI PW.2. for its onward transmission to PFSA, Lahore. Akram Jamil 1239/C was examined as PW.3 who narrated the events which led to the recovery of Charas weighing 1290 grams. Muhammad Mukhtar SI, was examined as PW.4 who was the Investigating Officer of this case, he took into possession the sealed parcels and also custody of the appellant. During the investigation of the case, he recorded the statements u/S. 161, Cr.P.C. of the witnesses and also prepared rough site-plan Ex.P.C. After recording the evidence of these prosecution witnesses the learned Deputy District Public Prosecutor (DDPP) gave up, PW-Muhammad Yasin 469/C, being unnecessary. He also tendered in evidence the report of Punjab Forensic Science Agency, Lahore as Ex.P.D. and closed the prosecution case.
5. After completion of prosecution evidence, the statement of appellant was recorded u/S. 342 of the Code of Criminal Procedure, 1898. The appellant in his statement pleaded his innocence and denied his involvement in the alleged offence. The appellant, however, neither led any evidence in his defense, nor opted to appear in the witness-box in terms of Section 340(2) of the Code of Criminal Procedure, 1898. The appellant also did not adduce any evidence in his defense.
6. After completion of the evidence and hearing both the sides, the learned trial Court, after holding the appellant guilty of the offence, convicted and sentenced him as mentioned in the Paragraph No. 1 above.
7. Learned counsel for the appellant submitted that the prosecution has failed to prove its case against the appellant. Learned counsel has contended that the prosecution has purposely withheld the material witnesses, present at the place of occurrence at the time of occurrence belonging to the general public. Learned counsel argued that the appellant had nothing to do with the recovery of Charas and was involved in this case due to enmity.
8. Conversely, learned District Public Prosecutor (DPG) on behalf of the State submitted that the prosecution has led sufficient evidence to prove the recovery against the appellant. He further submitted that all the witnesses corroborated each other on material points and their evidence is convincing and confidence inspiring. Learned Prosecutor also contended that the prosecution has successfully proved its case against the appellant beyond shadow of doubt and his conviction was rightly recorded by the learned Judge Special Court, Control of Narcotic Substances Act. 1997 District Vehari.
9. We have heard the learned counsel for the appellant as well as District Public Prosecutor and perused the record.
10. In order to prove the case, the prosecution examined as many as four witnesses but out of these witnesses, the evidence of Farooq Ramzan, TSI, PW.2, and Akram Jamil 1239/C as PW.3, is of significant importance. While going through the statements of these two material witnesses, we have examined that the case property Charas was duly exhibited in their evidence as P-I which was taken into possession vide recovery memo Ex.P.B. Both of them remained consistent and firm on all the material aspects of the recovery. They have given each and every detail with regard to the recovery proceedings. PW.2 & PW.3 were cross-examined at length but nothing could be adduced which can adversely effect the prosecution case. The tenor of cross-examination reflects that the defense has not seriously challenged the recovery of Charas P-I. Moreover, the prosecution by production of Muhammad Iqbal 192/HC as PW.1, Farooq Ramzan TSI as PW.2, and Muhammad Mukhtar SI/Investigating officer as PW.4 has proved that the recovered Charas and the sample taken therefrom was transmitted to the office of Punjab Forensic Science Agency, Lahore without anyone interfering with the same. The defense as taken by the appellant was to the effect that the appellant was a gunman and was apprehended from the main road while returning home. This remained a mere suggestion and no evidence was adduced so, as to prove the same. No reason has been extended by the appellant as to why this quantity was planted upon him by Farooq Ramzan TSI/complainant PW.2. It is also noteworthy that while cross- examining the said Farooq Ramzan TSI PW.2 this was never suggested to him. This stance has been taken only at the time when the statement of appellant was recorded u/S. 342, Cr.P.C. as answering to Question No. 4.
11. The Control of Narcotic Substances Act, 1997 provides a little bit different mechanism in procedure for establishing the guilt of an accused. The Control of Narcotic Substances Act, 1997 provides by way of section 29 as under:
29. Presumption from possession of Illicit articles.--In trial under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) any narcotic drug psychotropic substance or controlled substance;
(b) any cannabis, coca or opium poppy plaint growing on any land which he has cultivated.
(c) any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controller substance; or
(d) any material which have undergone any process towards the production or manufacture of narcotic drug psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily.
Hence, in view of Section 29 of the Control of Narcotic Substances Act, 1997 if once the prosecution is able to bring on record sufficient material in order to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise. The case property was produced and exhibited as P-I before the trial Court and there is no serious challenge to the same from the other side. The report of Punjab Forensic Science Agency, Lahore, exhibited as Ex.P.D. was also tendered in evidence, which affirms the nature of recovered substance being a narcotic drug, attracting the provisions as contained in Section 9 of the Control of Narcotic Substances Act, 1997. In criminal cases substitution is a rare phenomenon and in cases where there existed no enmity between the accused and the witnesses then the same is even rarer. In this case, in our humble view, the prosecution has produced all the relevant witnesses to prove the factum of the recovery of Charas weighing 1290 grams.
12. In view of the material available on the record, we are of considered view that the prosecution has successfully proved its case against the appellant without any shadow of doubt by leading relevant, admissible and cogent and trustworthy evidence, therefore, we while maintaining the conviction of the appellant namely Nasir Hussain as recorded by the learned Judge Special Court, the Control of Narcotic Substances Act, 1997, District Vehari, dismiss the instant appeal.
(A.A.K.) Appeal dismissed
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