PLJ 2026 Cr.C. (Note) 22
[Lahore High Court, Lahore]
Present: Mirza Viqas Rauf and Sardar Muhammad Sarfraz Dogar, JJ.
versus
STATE etc.--Respondents
Crl. A. No. 581 of 2015, heard on 20.3.2017.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
(2) Rule 13-A of 1975 Rules for determination of inter-se seniority
(3) Principle “Birds of a feather flock together” explained.
----Ss. 9(c) & 25--Non-association of public witnesses in recovery--Recovery of narcotics--C.N.S.A. 1997”, being special law was promulgated to curb menace of smuggling of narcotics--The legislature has incorporated Section 25 in “C.N.S.A., 1997” by virtue of which applicability of Section 103 of “Cr.P.C.” was specifically excluded to proceedings conducted under said Act--The prosecution witnesses being members of raiding party were natural witnesses and their testimony cannot be thrown away merely on ground that they were employees of police force--Even otherwise in absence of any animosity, evidence of police witnesses cannot be discarded--The police witnesses are as good and reliable witnesses as any private witness can be. [Para 8] A
PLD 2009 SC 39.
Control of Narcotics substances (Government Analysts) Rule, 2001--
آر آر ۔ 4 اور 5-کیمیائی معائنہ کار کو تاخیر کے ساتھ منشیات کے نمونے بھیجنا-نارکوٹک سبسٹینس کنٹرول (گورنمنٹ اینالسٹس) رولز ، 2001 کے رولز 4 اور 5 ، تفتیشی افسر پر منشیات کی ضبطی کے 72 گھنٹوں سے زیادہ نمونے بھیجنے پر کوئی پابندی عائد نہیں کرتے ہیں ۔ مادہ-حوالہ شدہ قواعد ڈائریکٹری نوعیت کے ہیں اور لازمی نہیں ہیں اور مذکورہ قواعد میں مقررہ مدت سے زیادہ نمونے بھیجنا ، چھیڑ چھاڑ کے کسی الزام کی عدم موجودگی میں ، استغاثہ کے پورے معاملے کو مایوس نہیں کرے گا ۔
----Rr. 4 & 5--Sending of narcotics samples with delay to chemical examiner--Rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001, impose no bar on Investigating Officer from sending sample beyond 72 hours of seizure of narcotic substance--The referred rules are directory in nature and not mandatory and sending sample beyond stipulated period in above rules, in absence of any allegation of tampering, would not frustrate entire case of prosecution. [Para 9] B
PLD 2009 SC 39.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
دفعہ 9 (ج)-ہیروئن کی بازیابی-سزا اور سزا-ثبوت - - کیمیائی معائنہ کار کو نمونے بھیجنا - استغاثہ نے ثبوت کی ابتدائی ذمہ داری کو کسی شک کے سائے سے بالاتر کامیابی کے ساتھ نبھا دیا ہے ۔ - برڈن نے کہا کہ ذمہ داری سے چھٹکارا پانے اور بے گناہی ثابت کرنے کے لئے دفاع میں منتقل کیا لیکن دفاع سیکشن 29 "سی این ایس اے ، 1997" کے لحاظ سے بیان کردہ بوجھ کو خارج کرنے میں بری طرح ناکام رہا ہے ۔ - اپیل کنندہ کے غلط مضمرات کی وجہ - - استغاثہ نے اپیل گزار کے خلاف اپنے مقدمے کو بغیر کسی شک کے زبانی اور دستاویزی دونوں طرح کے ٹھوس اور قابل اعتماد ثبوت پیش کرکے کامیابی کے ساتھ ثابت کیا ہے ۔ - زبانی ورژن کی حمایت کیمیائی معائنہ کار کی رپورٹ نے بھی کی تھی - ٹرائل کورٹ نے حالات میں ثبوتوں کی مناسب تشخیص کے بعد اپیل کنندہ کی سزا کو صحیح طور پر ریکارڈ کیا ہے - عدالت کو ٹرائل کورٹ کے متنازعہ فیصلے میں کوئی غیر قانونی یا کمزوری نظر نہیں آتی ، جو ہر لحاظ سے ناقابل تسخیر ہے-چیلنج کے تحت فیصلے میں اپیل کے دائرہ اختیار کے استعمال میں ہائی کورٹ کی طرف سے مداخلت کی ضرورت نہیں ہے-اپیل کو مسترد کر دیا گیا ۔
----S. 9(c)--Recovery of heroin--Conviction and sentence--Evidence--Sending samples to chemical examiner--The prosecution has, successfully discharged initial onus of proof beyond any shadow of doubt--Burden shifted to defence to discharge said onus and prove innocence but defence has miserably failed to discharge said burden in terms of Section 29 “C.N.S.A., 1997”--Apparently there is no plausible--Reason for false implication of appellant--The prosecution has successfully proved its case against appellant without any hint of doubt by producing cogent and convincing evidence, both oral as well as documentary--The oral version was even supported by report of Chemical Examiner--The trial Court in circumstances has rightly recorded conviction of appellant after properly appraising evidence--Court find no illegality or infirmity in impugned judgment of trial Court, which in all respects is unexceptionable--The judgment under challenge requires no interference by High Court in exercise of appellate jurisdiction--Appeal dismissed. [Para 11 & 12] C & D
Ch. Zulfiqar Ali Hargan, Advocate for Appellant.
Rana Muhammad Shafique, DDPP for State.
Date of hearing: 20.3.2017.
Judgment
Sardar Muhammad Sarfraz Dogar, J.--The appellant namely, Naziran Bibi through instant appeal under Section 48 of The Control of Narcotic Substances Act, 1997 (hereinafter referred as “C.N.S.A., 1997”) assails the judgment dated 13th March, 2015 passed by the learned Additional Sessions Judge, Sargodha, whereby she was convicted under Section 9(c) of “C.N.S.A., 1997” and sentenced to four years rigorous imprisonment alongwith fine of Rs. 20,000/-and in case of default, she was held liable to further undergo five months simple imprisonment. Benefit of Section 382-B of The Code of Criminal Procedure, 1898 (hereinafter referred as “Cr.P.C.”) was, however, extended to the appellant.
2. The prosecution story is mainly structured on the statement of Khawar Munir Dar, Excise Inspector (PW-4) who being the complainant narrated the same in the following manner:-
“On 05.10.2014, at 2.10 P.M. I along with Abdul Sattar constable Excise, Muhammad Ramzan S.I, Muhammad Ashraf ASI, Aashiq Ali constable and lady constable Touqeer Batool were present at Sheller Colony, in connection with patrolling and checking of narcotics dealers. The informer informed that a woman along with heavy quantity of heroin was coming from Sargodha towards Bhagatanwala. If raid is conducted she can be apprehended alongwith huge quantity of heroin. On this information, raiding party imposed check post on sheller colony. Meanwhile, a woman whose name was later-on known to us as Naziran and who is present in Court, deboarded from a passenger bus. She was apprehended by Touqeer Batool lady constable. Her personal search was made by the said lady constable. The accused Naziran Bibi was holding a shopper. The lady constable made search of the shopper, from which heroin weighing 1150 grams P-1 was recovered. On further search, Watak amount Rs. 1550/-was recovered from her wallet. Out of the recovered heroin, 06 grams was separated as sample. Sample and remaining heroin were made into two separate sealed parcels. The recovered heroin and watak amount was taken into possession vide recovery memo Ex./P-B, which was attested by Muhammad Ashraf ASI and lady constable Tauqeer Batool. I wrote down the complaint Ex/P-A and sent the same to police station for registration of case. Thereafter, I handed over the case property and accused to Muhammad Ramzan S.I for further investigation.”
On the receipt of complaint (Exhibit-PA), first information report
No. 331 dated 5th of October, 2014 (Exhibit-PA/1) was chalked out by Ahmed Khan A.S.I. (PW3). After registration of case and entrustment of the investigation to Muhammad Ramzan S.I. (PW6), report under Section 173 of “Cr.P.C.” was placed before the learned Additional Sessions Judge, Sargodha for conducting trial. While taking cognizance, the learned Additional Sessions Judge framed the charge against the appellant on 21 November, 2014 to which she pleaded not guilty and claimed trial. In support of the charge, prosecution examined six witnesses in toto and also tendered certain documents including the report of Forensic Science Agency, Lahore as Exhibit-PD. On closure of prosecution evidence, statement of the appellant was recorded under Section 342 of “Cr.P.C.” wherein she denied the charges against her and pleaded her innocence. The appellant, however, did not either opt to record her statement under Section
340(2) of “Cr.P.C.” or to produce any defence evidence. On culmination of trial, the appellant was held guilty and convicted by way of impugned judgment as mentioned in preceding paragraph
No. 1.
3. Learned counsel for the appellant, while assailing the judgment of conviction submitted that prosecution has badly failed to prove the charge against appellant. He added that place of recovery was a public place but no witness from the public was associated in the recovery proceedings which cause a serious doubt about the prosecution story. He further submits that there are serious discrepancies/contradictions between the statements of prosecution witnesses. It is also maintained that specimens separated from the recovered material have been sent to Laboratory after considerable delay, which has made the prosecution story highly doubtful. Concluding the arguments, learned counsel submitted that appellant is first offender who has been falsely involved in this case, therefore, this appeal is liable to be accepted and the appellant may be acquitted of the charge.
4. Conversely, learned Deputy District Public Prosecutor submitted that the prosecution has led cogent evidence against the appellant to establish her guilt and all the witnesses remained consistent on all material aspects of the case. Learned Prosecutor contended that the appellant has failed to bring on record any material showing any mala fide of the police to falsely involve the appellant in this case. He added that the appellant has failed to point out any material discrepancy in the evidence of the prosecution. Learned Deputy District Public Prosecutor maintained that in view of Section 29 of “C.N.S.A., 1997”, the prosecution has successfully discharged the initial onus of proof and the appellant has failed to prove her innocence. He argued that the case against the appellant is proved beyond any hint of doubt and the learned trial Court has rightly convicted her.
5. After having heard learned counsel for the appellant as well as learned Prosecutor, we have also gone through the record.
6. The prosecution in the instant case was set into motion with the complaint (Ex. PA) which was rooted by Khawar Munir Dar, Excise Inspector (PW4) on the basis of alleged recovery of heroin weighing 1150 grams from the appellant, which resulted into registration of F.I.R. (Ex. PA/1). In order to prove its case, the prosecution produced Tauqeer Batool No. 152/C, being one of the recovery witnesses as PW5, who deposed in line with the prosecution case and fully supported the recovery proceedings conducted by the complainant of the case. The other material witness was Khawar Munir Dar, Excise Inspector, who being the complainant appeared as PW4. In his statement, he categorically narrated the manner of recovery and in his statement, heroin which was taken into possession vide recovery memo (Ex. PB) was also produced before the learned trial Court and it was marked as P1. Perusal of record reveals that both these witnesses though thoroughly cross-examined by the defence but they remained consistent on all the material points and fully supported the recovery effected from the appellant. Muhammad Ramzan S.I. being the Investigating Officer was examined as PW6 whereas Iftikhar Ahmad No. 91/MHC was produced as PW1, who deposed about the safe custody of the case property and onward transmission of the sample parcel to the office of Punjab Forensic Science Agency. While analyzing the preponderance of prosecution evidence we have also gone through the report of Punjab Forensic Science Agency which tendered in evidence as Ex. PD, the same provides due corroboration to the prosecution case.
7. After having a critical analysis of the prosecution evidence, we are of the considered view that prosecution has successfully discharged the initial onus of proof and after leading cogent and convincing evidence in support of the charge, prosecution has successfully shifted the onus of proof towards the appellant, who in terms of Section 29 of “C.N.S.A., 1997” was obliged to refute the same through a tangible defence. We when examined the statement of appellant recorded under Section 342 of “Cr.P.C.”, it appears that defence plea was of general and vague nature which in no way can be termed as sufficient to rebut the overwhelming and confidence inspiring evidence of the prosecution.
8. So far non-association of public witnesses in the recovery proceedings is concerned, we are inclined to observe that “C.N.S.A. 1997”, being special law was promulgated to curb the menace of smuggling of narcotics. The legislature has incorporated Section 25 in “C.N.S.A., 1997” by virtue of which the applicability of Section 103 of “Cr.P.C.” was specifically excluded to the proceedings conducted under the said Act. The prosecution witnesses being members of the raiding party were the natural witnesses and their testimony cannot be thrown away merely on the ground that they were the employees of the police force. Even otherwise in absence of any animosity, the evidence of police witnesses cannot be discarded. The police witnesses are as good and reliable witnesses as any private witness can be. Reliance in this respect if needed, can be placed on “Tariq Mehmood vs. The State through Deputy Attorney-General, Peshawar” (PLD 2009 Supreme Court 39).
9. While considering the contention raised by learned Sounsel for the appellant regarding sending of sample with delay to the Chemical Examiner, it is pertinent to mention that Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, impose no bar on the Investigating Officer from sending the sample beyond 72 hours of seizure of the narcotic substance. The referred rules are directory in nature and not mandatory and sending the sample beyond the stipulated period in above rules, in absence of any allegation of tampering, would not frustrate the entire case of prosecution. Reliance in this context can be placed on the case of “Tariq Mehmood vs. The State through Deputy Attorney-General, Peshawar” (PLD 2009 Supreme Court 39).
10. Learned Defence counsel has laid much emphasis that there is material contradiction qua the weight of sample parcel in the statements of PW4 and PW6 as PW4 has stated that he extracted a sample parcel weighing 6 grams from the recovered heroin whereas PW6 in his cross-examination deposed that PW4 separated only one gram heroin as sample. PW4 Khawar Muneer Daar Excise Inspector is complainant whereas PW6 Muhammad Ramzan, S.I. is Investigating Officer of instant case. We have observed that in complaint drafted by complainant PW4 it is categorically mentioned that he Separated six grams heroin as sample parcel. Simultaneously report of Forensic Science Agency Ex. PD also reflected that a sealed parcel containing suspected heroin weighing 6 grams was sent for analysis. In the attending circumstances the contradiction with regard to weight of sample parcel highlighted by learned Defence counsel is minor in nature which might be because of passage of time. Therefore, the contention raised by learned Defence counsel failed to provide any support to the case of appellant.
11. In the light of evidence produced by the prosecution, we are of the considered opinion that the prosecution has successfully discharged initial onus of proof beyond any shadow of doubt. Resultantly, the burden shifted to the defence to discharge said onus and prove innocence but the defence has miserably failed to discharge the said burden in terms of Section 29 “C.N.S.A., 1997”. Apparently there is no plausible reason for false implication of the appellant.
12. For what has been discussed above, we have no doubt in our mind that the prosecution has successfully proved its case against the appellant without any hint of doubt by producing cogent and convincing evidence, both oral as well as documentary. The oral version was even supported by the report of Chemical Examiner. The learned trial Court in the circumstances has rightly recorded the conviction of the appellant after properly appraising the evidence. We find no illegality or infirmity in the impugned judgment of the learned trial Court, which in all respects is unexceptionable. The judgment under challenge requires no interference by this Court in exercise of appellate jurisdiction.
13. The nutshell of the above discussion is that we do not find any substance in this appeal. Resultantly the same is hereby dismissed while maintaining the conviction of the appellant as awarded by the learned trial Court by way of judgment dated 13.03.2015.
(A.A.K.) Appeal dismissed
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