2012 P Cr (PLP)

MUHAMMAD HASHIM KHAN KAKAR, J.

Criminal Appeal No.227 of 2010 is directed against the judgment dated 18th August, 2010, passed by the Special Judge CNS, Balochistan, Quetta (the "trial Court"), whereby appellant Samiullah son of Haji Nasrullah was found guilty for committing an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 (the "CNS Act") and sentenced to suffer life imprisonment and to pay a fine of Rs.100,000 (rupees one hundred thousand only), or in default whereof to further undergo SI for one (1) year, with the benefit of section 382-B of the Cr.P.C. Through the aforesaid judgment, the trial Court acquitted co-accused Haji Nasrullah of the charge, against which Criminal Acquittal Appeal No.231 of 2010 has been filed by the State through Regional Director/ Force Commander, Anti-Narcotics Force (ANF), Balochistan, Quetta.

2. Complainant Tanveer-ul-Hanif, Assistant Director ANF, Quetta (P.W.1) in his murasila (Exh.P/1-A), alleged that on 2nd February, 2009, the high-ups received secret information to the effect that Haji Nasrullah and his son Samiullah, through a truck bearing Registration No.TKA-304, would smuggle huge quantity of narcotics from Gulistan District Killa Abdullah to Shikarpur via Quetta. On receiving said information, a raiding party, consisting of the complainant, and other ANF staff, was constituted, who at about 5-30 p.m., started surveillance at Quetta-Sibi road at Mach cross. At about 6-30 p.m., the aforesaid truck was found coming from Quetta side, which was signalled to stop on the pointation of informer, but the driver tried to accelerate the truck, however, the same was stopped. The complainant further alleged that the person, who was sitting on driver's seat, disclosed his name as Samiullah, whereas the person, sitting along with him on from seat, as Haji Nasrullah. During course of interrogation, they disclosed that the narcotics were being concealed in the secret cavities of the floor of the truck and on their pointation, the floor was checked, wherefrom 490 packets of baked charas, weighing one kilogram each packet, total weighing 490 kilograms, were recovered, out of which, 490 grams of charas from each packet was separated for chemical test and sealed in parcel No.1, while the remaining charas was also sealed in parcels Nos.2 to

17. Consequently, the aforesaid case was registered.

3. On the stated allegation, a formal charge for possession of narcotics against the appellant and co-accused (since acquitted) was framed, to which they did not plead guilty and claimed trial. The prosecution, in order to prove its case, produced three witnesses, viz. P.W.1 Tanveer-ul-Hanif, Assistant Director ANF (complainant), P.W.2 Sobedar Manzoor Ali, (recovery witness), and P.W.3 Adeel Riaz, SI (Investigating Officer). After recording of prosecution evidence, the appellant and co-accused Haji Nasrullah were examined under section 342, of the Cr.P.C., wherein they repudiated the prosecution's allegation and claimed to have been falsely charged. The appellant did not record his statement on oath, whereas co-accused Haji Nasrullah recorded his statement on oath. They produced two witnesses; viz. D.W.1 Ghulam Sarwar alias Tore Jan and D.W.2 Sardar Faiz Ahmed Durrani in defence. Upon consideration of the evidence produced by the parties in support of their respective contentions, the trial Court held that the prosecution has succeeded in proving its case against appellant Samiullah beyond reasonable doubt and, while having held so, convicted and sentenced him and acquitted co-accused Haji Nasrullah by extending benefit of doubt, as stated above, hence, these appeals.

4. We have heard learned counsel for the parties and also gone through the impugned judgment.

5. Learned counsel for appellant Samiullah, in Criminal Appeal No.227 of 2010, stated that evidence of the witnesses is contradictory to each other; that there is delay in lodging of the F.I.R.; that on the basis of same evidence, co-accused Haji Nasrullah was acquitted of the charge, while the appellant was convicted without any justification; that the trial Court has failed to appreciate the defence version vis-a-vis prosecution case, therefore, the case of prosecution is doubtful.

6. On the other hand, learned Special Prosecutor, ANF, representing the State in Criminal Acquittal Appeal No.231 of 2010, opposed the criminal appeal and submitted that the case against appellant Samiullah and acquitted accused/respondent has been proved beyond any reasonable doubt. Both the appellant and respondent Haji Nasrullah were boarded in one vehicle and that huge quantity of narcotics was recovered from their joint possession, concealed in secret cavities of the truck in question and, obviously, such a huge quantity of narcotics cannot be planted by the ANF from their own resources. The prosecution evidence is consistent on material aspects of the case and it has brought home the guilt of both the appellant and respondent Haji Nasrullah.

7. We have carefully examined the contentions, as agitated on behalf of the parties and scanned the entire evidence, which has come on record, by keeping the defence version in juxtaposition and perused the impugned judgment. A careful scrutiny and in-depth evaluation of the entire evidence would reveal that prosecution has substantiated the accusation by producing cogent and concrete evidence. In this connection, the eye account has been furnished by Tanveer-ul- Hanif (P.W.1) and Sobedar Manzoor Ali (P.W.2). A conscious analysis of the depositions of the above named P.Ws. would reveal that appellant Samiullah was found in possession of recovered narcotics, while travelling in truck bearing Registration No.TKA-304. No glaring contradiction could be pointed out in their statements and insofar as the minor contradictions are concerned, the same do creep in with the passage of time and can be ignored safely. It is worth-mentioning that in spite of exhaustive and searching cross-examination, nothing advantageous could be elicited rendering any help to the case of appellant Samiullah. We are of the firm opinion that all the prosecution witnesses were natural and impartial, having no enmity or rancour against the appellant and their evidence cannot be discarded only for the reason that they are official witnesses. In view of the overwhelming evidence, as mentioned hereinabove, the question of substitution or false implication of the appellant does not arise, who was found in possession of the narcotics.

8. The trial Court has discussed the evidence and has given valid reasons for its conclusion. The statements of Tanveer-ul-Hanif and Manzoor Ali have rightly been considered and relied upon by the trial Court. The judgment impugned herein does not suffer from any illegality or material irregularity. We are not persuaded to agree with the prime contention of learned counsel for the appellant that the F.I.R. has been lodged after unexplained delay of four hours and, therefore, the prosecution case is doubtful. It is not denied that undue, unreasonable and unexplained delay in filing F.I.R. leads to suspicion and reflects on the truth of the prosecution case and earlier information of crime is required to be supplied in order to avoid criticism of the report as being manipulated, but in the present case, we find that there is no delay in lodging of F.I.R., as it is abundant clear from bare reading of F.I.R. that the place of raid is situated at a distance of about 80 kilometers from the ANF Police Station, Quetta.

9. Reverting to the next contention regarding non-association of private witnesses, the provisions of section 103 of the Cr.P.C. have no application to the narcotics cases under the CNS Act as per provisions contained under section 25 of the said Act. The record is also indicative of the fact that immediately after the apprehension, the charas in question was recovered from the secret cavities of the truck, being driven by appellant Samiullah, certain quantity of charas from each packet was separated, sealed into a separate parcel and dispatched to the Federal Government Analyst, Balochistan for opinion. The opinion of the Analyst (Exh.P/3-E) is in positive.

10. We have also kept the defence version in juxtaposition. The occurrence has partly been admitted by appellant Samiullah and he raised the plea of substitution and false implication. This plea, in the peculiar facts and circumstances of this case, is nothing, but a cock and bull story and is merely an attempt to hide his own guilt and cannot be accredited with truth for the following reasons:-- (i) Firstly, the appellant did not courage to make statement on oath; (ii) Secondly, he did not lead any reliable and cogent defence to prove it; (iii) Thirdly, it is repellant to common sense and it cannot be believed that officials would plant such a huge quantity of narcotics on the appellant from their own resources.

11. We are of the opinion that the defence version, being false, fabricated and an afterthought, has rightly been rejected by the trial Court. The evidence, which has come on record, has rightly been appreciated by the trial Court and the impugned judgment, being well reasoned and unexceptionable, does not call for any interference. Accordingly, Criminal Appeal No.227 of 2010, being devoid of any merit is dismissed.

12. So far as Criminal Acquittal Appeal No.231 of 2010 is concerned, it is the case of prosecution that respondent Haji Nasrullah was found sitting along with appellant Samiullah on front seat at the time, when the truck in question was intercepted. The prosecution did not produce any concrete evidence, except the alleged inadmissible joint disclosure to show that he was in joint possession or control of the truck in question or he had any concern or dealt with the contraband material in any manner. On the contrary, the charas was found concealed in the secret cavities of the truck in question, meaning thereby that the narcotics were hidden from all persons. There is no evidence to indicate that respondent Haji Nasrullah knew that charas was concealed in the secret cavities or he had exclusive knowledge of the said cavities, so as to attract the provisions of Article 122 of the Qanun-e-Shahadat Order, 1984. The prosecution has simply proved his presence in the truck at the time when the same was intercepted, therefore, mere presence of respondent Haji Nasrullah in the truck would not be sufficient to involve him in the present case, unless conspiracy or abetment of the offence is shown and proved. Thus, the case of respondent Haji Nasrullah is quite distinguishable from the case of appellant Samitillah. We are conscious of the fact that respondent Haji Nasrullah is father of appellant Samiullah, but it is a settled principle of law that each and every individual is responsible for his own act and the Holy Prophet Muhammad (P.B.U.H) preached this view in his last address that father is not responsible for the acts of his son or daughter, whereas the son and daughter are not responsible for the acts of his/her father. It is a golden principle of law that to err in acquittal is better than to err in conviction. It is also saying of the Holy Prophet Muhammad (P.B.U.H) that mistake of Qazzi (Judge) in releasing a criminal is better than his mistake in punishing an innocent. Thus, Criminal Acquittal Appeal No.231 of 2010, being meritless, is also dismissed. H.B.T./46/Q Appeals dismissed.