PLJ 2024 Cr.C. (Note) 5
[Balochistan High Court, Quetta]
Present: Zaheer-ud-Din Kakar and Shaukat Ali Rakhshani, JJ.
NABI KHAN--Appellant
versus
STATE--Respondent
Crl. A. No. 608 of 2021, deiced on 15.11.2022.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 48--Criminal appeal--Conviction and sentence--Challenge to--Allegation of--Recovery of charas--Recovery witness (W-3) deposed that vehicle was taken into levies station Wali Khan and also admitted during cross-examination that trailer-vehicle was searched at bungalow of AC, whereas remaining witnesses stated otherwise--He stated that recovery was effected by complainant (PW-2), which fact contradicts 10 PW-4)--After critical analysis of depositions of witnesses, recovery has not been proved beyond any reasonable doubt as their testimony is highly cloudy, contradicting each witness on material points of search, recovery and making of parcels--Adverting to evidence pertaining to safe custody and transmission, deposition of PW-1 is pivotal--He testified that while he was present in levies station Wali Khan as Head Moharrar, at 5:30, I.O. (PW-4) handed over him Parcel No--1, whereof be made entry in Register No:19 and kept same in safe custody of Malkhana whereas parcels No. 2 to 19 were sent for chemical analysis to laboratory through murasila of Deputy Commissioner, whereof chemical report was received on 30.06.2021--His statement does not reveal that parcels No. 2 10 19 were also deposited by him in Malkhana--He also did not state that when samples were taken back and to whom same were handed over for onward transmission to FNTL The FNTL rport depicts that purported samples were received by Head constable (PW-1)--There is no explanation on record that if Head Moharrar (PW-1) had sent samples then why it was nor received on same day, rather were received on 17.6.2021--Safe custody and ransmission seems to have been jeopardized--Samples were Received in office of FNTL, through HC but said head constable has not been Produced--Prosecution has not only miserably failed to prove recovery but also safe custody and transmission of contraband from place of recovery to office of FNTL as well--After such conclusion, defence plea becomes of no deal for discussion--Appeal allowed. [Para 4, 5 & 6] A, B & C
M/s. Ali Ahmed Lehri & Abbas Zehri, Advocates for Appellant.
Mr. Naeem Kakar, Additional Prosecutor General (APG) for State.
Date of hearing: 1.11.2022.
Judgment
Shaukat Ali Rakhshani, J.--Appellant has called in question the judgment dated 08.12.2021 (“impugned judgment”) authored by Special Judge of the Court constituted under the Control of Narcotic Substances Act, 1997 Sessions Judge Mastung emanating from an FIR No. 20 of 2021 dated 14.06.2021 registered within the remits of Levies Station Wali Khan Mastung under Section 9(c) of Control of Narcotic Substances Act, 1997 (“Act of 1997”) for recovery of 22 kgs of charas concealed in a Trailer-vehicle bearing Registration No. TCL-535 driven by the appellant Nabi Khan, who was booked and after denial of indictment during trial, led the prosecution to produce four witnesses so as to bring home the charge; appellant was examined as contemplated under Section 342 of the Criminal Procedure Code, 1898 (“CrPC”), who refuted the allegations by pleading innocence and also stepped into the witness box in his defence by producing tracker record of his trailer consisting of seven pages (Ex.DW/1), copy of Google map (Ex.DW/2), copy of website maintained by Deputy Commissioner, Mastung (Marked DW/1) and Toll Tax Ticket (Marked DW/2) respectively. He also produced Nisar Ahmed Secretary Press Club (DW-1) who produced news clippings (Marked as DW/1 to DW/4), thus after a full-fledged trial, the learned Trial Judge 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. 200,000 in definult to further undergo for a period of six month SI with the premium of Section 382-B, Cr.P.C.
2. Mr. Ali Ahmed Lehri, Advocate for the appellant inter alia contended that the appellant is innocent, who has falsely been involved and substituted in the instant case. He maintained that the alleged recovery of narcos has been foisted upon the appellant, which is otherwise is highly doubtful and that the prosecution has also failed to prove the safe custody and transmission of the contraband i.e., beginning from making the parcels on the spot to the Federal Narcotics Testing Laboratory, Balochistan Quetta (“FNTL Quetta”) According to him, the prosecution witnesses have contradicted each other on material points i.e., recovery, 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, which is unsustainable, henceforth, requested for acquittal of the appellant.
Conversely, learned APG vigorously opposed the appeal and acquittal of the appellant. He urged that the prosecution has proved the recovery of the contraband without any shadow of doubt and that the FNTL report has strengthened the case of the prosecution, which by all means is in accordance with the protocols, hence the appeal being devoid of merits dismissal.
3. Heard. Record pondered upon with the able assistance of learned counsel for the adversarial parties. The prosecution to prove the recovery mainly relies upon the testimony of Bilal Ahmed Naib Risaldar, complainant (PW-2) and recovery witness Inayatullah (PW-3) whereas to prove safe custody and transmission relies upon the testimony of Kifayatullah ASI (PW-1) and Muhammad Akram Harifal Tehsildar (PW-4).
Complainant (PW-2) reiterated what he had reported in his murasila (Ex.P/2-A). He testified to have recovered 18 packets of charas, weighing 22 kgs on a tip off from the spare tyres of the vehicle driven by the appellant, whereof he extracted 10 grams from each packet and prepared parcels No. 2 to 19, whereas the remaining charas was put in Parcel No. 1. During cross-examination, he stated that no one from the levies station came on the spot during recovery and making parcels and that Tehsildar came later at the place of recovery whereafter he along with other staff went to Police Station along with Tehsildar (PW-4) where AC was already present there and arrangements were being made for the press conference regarding the recovery of narcotics from the appellant. Investigating Officer (“IO”) Tahatider Muhammad Akrath Harital (PW-4) contradicted the complainant (PW-2) which has made the entire recovery highly doubtful. He (PW-4) testified that on 14.06.2021 after registration of the FIR (ExP/4-A), he rushed to the place of recovery. Prepared site-plan (14-1). He categorically stated that he prepared parcels and he was the one who extracted samples for chemical analysis, which belies complainant (PW2).
4. Recovery witness (W-3) deposed that the vehicle was taken into the levies station Wali Khan and also admitted during cross-examination that the trailer-vehicle was arched at the bungalow of AC, whereas the remaining witnesses stated otherwise. He stated that the recovery was effected by complainant (PW-2), which fact contradicts the IO (PW-4). After critical analysis of the depositions of the above witnesses, we believe that the recovery has not been proved beyond any reasonable doubt as their testimony is highly cloudy, contradicting each witness on material points of search, recovery and making of parcels.
5. Adverting to the evidence pertaining to safe custody and transmission, the deposition of Kifayatullah ASI (PW-1) is pivotal. He testified that on 14.06.2021, while he was present in levies station Wali Khan as Head Moharrar, at 5:30, (I.O.) (PW-4) handed over him Parcel No. 1, whereof he made entry in Register No. 19 and kept the same in safe custody of Malkhana whereas Parcels No. 2 to 19 were sent for chemical analysis to the laboratory through murasila of Deputy Commissioner, whereof chemical report was received on 30.06.2021. His statement does not reveal that the Parcels No. 2 to 19 were also deposited by him in the Malkhana. He also did not state that when samples were taken back and to whom the same were handed over for onward transmission to the FNTL. The FNTL report (Ex.P/4-E to Ex.P/4-X) depicts that the purported samples were received on 17.06.2021 by one Head constable Kifayatullah (PW-1). There is no explanation on record that if Head Moharrar (PW-1) had sent the samples on 16.06.2021 then why it was not received on the same day, rather were received on 17.06.2021. So the safe custody and transmission seems to have been jeopardized. Moreover, as stated, the samples were received in the office of FNTL, through HC Kifayatullah, but said Kifayatullah has not been Produced. If said HC Kifayatullah is considered to be Kifayatullah ASI (PW-1) then it was expected from him to have had stated that he was the person who took the said sample and delivered it in the office of FNTL for chemical examiner, but it is not so. In this regard we are fortified with the dictum expounded in the cases of ‘State v. Imam Bakhsh’ (2018 SCMR 2039), ‘Khairul Bashar v. State’ (2019 SCMR 930) & ‘Kamran Shah v. The State’ (2019 SCMR 217).
6. 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 office of FNTL as well. After such conclusion, the defence plea becomes of no deal for discussion.
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, who be set free, if not detained in any other case.
(A.A.K.) Appeal allowed
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