2012 YLR 2288 (PLP)

ABDUL QADIR MENGAL, J.--This appeal under section 48 of the Control of Narcotic Substances Act, 1997 has been filed against the judgment dated 5th July, 2011 passed by the Special Judge, CNS Khuzdar, whereby the appellant wag convicted and sentenced under section 9(c) of CNS Act, 1997 to suffer life imprisonment with fine of Rs.100,000, in default whereof the appellant was directed to undergo S.I. for six (06) months with benefit of section 382-B, Cr.P.C.

2. Brief facts of the present appeal as appearing from the case record are that the Levies officials of Chuk Check Post Tehsil Khuzdar received an information that a 2.0D Car bearing Registration No.AQG 981 proceeded from Quetta side towards Karachi, in which a huge quantity of illicit charas was shifting. . After receiving information the officials of the Check Post started surveillance to the vehicles passing through the Highway road. It was 2.30 (night) when the relevant 2.OD Car AQG-981 was reached, the same was stopped by the Levies officials and the driver was known as Abdul Malik son of Kargar, caste Achakzai, resident of Chaman. He was searched and his identity card was also found present with him. On search of the vehicle 13 packets lying underneath in hidden cavities of vehicle so as under the seats of 2.0D Car. The 13 packets of charas consisting upon rods and slabs weighing 13 kilograms were taken into possession, and F.I.R. was lodged, total 100 gram-Charas, was separated for analysis, which later on sent for chemical report. After registration of the F.I.R. and on completion of the investigation, the matter was sent to Special Judge, CNS Khuzdar for proceedings in accordance with law. The Special Judge, CNS Khuzdar on 21st March, 2011 read over the charge to the appellant/convict, to which appellant/ convict pleaded not guilty and claimed trial.

3. The Special Judge, CNS Khuzdar recorded evidence of prosecution witnesses (P.Ws.), which consisting upon P.W.1, Ali Ahmed Naib Tehsildar, P.W.2, Hidayatullah Hawaldar, P.W.3, Shakeel Ahmed Naib Risaldar Levies, P.W.4 Muhammad Umer Tehsildar, the Investigating Officer, and whereafter the statement of appellant was recorded by the learned Special Judge, CNS Khuzdar under section 342 Cr.P.C; so as on oath under section 340(2), Cr.P.C.

4. The appellant produced two defence witnesses (DWs) in support of his contention that he on the day of incident i.e. 6th February, 2011 from Jhalawan Company sat along with four other passengers in a 2.0D Car, and on their reaching at Chuk Levies Check Post, the Levies officials inquired about their identity cards, however, the Levies officials caught hold of him on the pretext that his identity card was fake and then later on implicated him in the present matter. The DW-1, Daulat son of Daru, Caste Achakzai stated that on 6th February, 2011 he was accompanied with appellant Abdul Malik in Quetta, as he had to proceed Karachi, first they tried to get a ticket of a Coach, however, when they failed then they went for ticket of 2.0D Car, as such, Abdul Malik proceeded along with other passengers, therefore, there is no question of recovery of charas from Abdul Malik. The second witness was Abdul Khaliq son of Abdul Jabbar, caste Achakzai, he also narrated on the same line as has been stated by DW-1 Daulat, that they got ticket from Jhalawan Company for the appellant of a 2.0D Car, as such, later on they came to know that Abdul Malik was apprehended by the Levies officials.

5. We have heard Mr. Muhammad Qahir Shah, Advocate for the appellant and Mr. Abdul Sattar Durrani, Addl: Prosecutor-General for State.

6. Learned counsel for the appellant mainly contented that there is no mention that the illicit 100 grams, which was separated. for analysis was taken from the rods or slabs of charas, as admittedly the material was consisting upon rods and slabs, so being it cannot be safely said that the 100 grams was secured or separated from each of the slab or rod, thus the appellant cannot be convicted for the whole material in view of the dictum of the higher court. In this connection learned counsel relied on PLD 2004 Page

856. The learned counsel further argued that the material was sent for analysis considerably delayed i.e. two and a half months, so being no reliance can be made on such report on account of its delayed analysis, so therefore, the prosecution case has become doubtful, as such, the appellant is entitled to be acquitted from the charge. In this connection learned counsel supported his view from the YLR 2005, Page 2805, Quetta. The relevant authority is reproduced here as under: "

S.? 9(c)

Appreciation of, evidence

No evidence was available on record to show whether the samples . were drawn from the alleged recovered material or when the same were sealed and who sealed them

Record also did not show as to when the samples were obtained, before whom the same were obtained and in whose custody the same remained, for more than fifteen days

Said samples were even not shown to have been obtained from each packet of the recovered material

Person who had sent the samples to Chemical Laboratory for analysis was not known

No "Fard" was available on record for taking into possession the samples for sending the same, to Chemical Expert--Accused was acquitted in circumstances. "

7. On contrary the State counsel strenuously opposed the contention of the learned counsel for the appellant and stated that the prosecution has successfully established the case against the appellant/ convict and it is the duty of the appellant to show that he has been falsely implicated in the instant matter. The counsel for appellant in that connection, whatever has stated, same has no substance and the story which has been presented by the defence side is also concocted one and gives no benefit to the appellant/convict.

8. After hearing both the sides, we have perused the record of the case. At the very outset we may mention that the defence which was put forth from the side of the appellant, having no any ring of truth. Admittedly the appellant has failed to produce any ticket of the alleged Jhalawan Company, so as also has failed to produce any member of the alleged Jhalawan Company, which showing that the vehicle, which was detained in the alleged case belong to the company, and the appellant travelled through the company's vehicle from Quetta to Karachi. As such, without any deep appreciation the contention of the appellant seems not reliable and same cannot be acted upon. Whereas no doubt under the provisions of Narcotic Substances Act, 1997 the primary duty or burden lies upon the prosecution to prove that the alleged material was taken from the possession of the appellant/accused, which in our view in the present case has been successfully established by the prosecution and in case of proving primary duty or shifting burden to accused then under the provisions of section 29 of the Control of Narcotic Substances Act, 1997 it is the duty of accused to show any excuse in respect of the possession of the said illicit contraband material as the same is evident from section 29 of Control of Narcotic Substances Act, 1997 which for the sake of facility has mentioned here as under:-- "

29. Presumption from possession of illicit articles.

In trials under this Ordinance, it may be presumed, unless and until the contrary is proved that the accused has committed an offence under this Ordinance in respect of-- (a)? any narcotic drug, psychotropic substance or controlled substance; (b)? any cannabis, coca or opium poppy plant 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 controlled substance; or (d)? any materials 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."

9. Thus in the light of above, we are of the view that the evidence, which has come from the side of the prosecution has established this fact that the appellant at the night of incident was driving alone the vehicle 2.0D Car hearing Registration No.AQG-981, which was stopped by the Levies officials of Chuk Check Post. In this connection the statement of all the P.Ws., P.W.1 Ali Ahmed Naib Tehsildar, P.W.2, Hiclayatullah Hawaldar Levies and P.W.3 Shakeel Ahmed Naib Risaldar Levies are not only corroboratory, consonant, but at the same time showing the true picture of scene of the offence. There is no material, which could show any will or animosity towards the appellant. The appellant himself also has failed to point out any ill will or defect in the prosecution evidence., Thus in the light of the above when adverting to the objections of the learned counsel that no material has been recovered from each of the slab or rod, as such, on account of this prosecution case being defective, and the appellant cannot be convicted for the whole material. But on our thorough examination of the record we see no substance in the objection of the learned counsel. Admittedly all the P.Ws. consistently have stated that 13 packets consisting upon rods and slabs were recovered from the possession of the accused and out of every packet, total 100 ( grams was collected, so being it means that from each of the packet, the I.O. has taken or collected material for analysis. Thus the authority PLD 2004, SC Page 856 having no relevancy with the facts of the present case as such, the same is ignored,. Whereas objection of learned counsel that material was sent by the I.O. about two months after the recovery Aor analysis, therefore on this ground, the analysis report is not reliable and appellant is liable to be acquitted of the charge being giving benefit of doubt. We have also given our anxious thought to this objection and are of the view that it also having no relevancy on the facts of relevant case. As admittedly in the present case, the 100 grams of charas separated through memo Exh.P/2-B by the I.O. in presence of Hidayatu.11ah Constable Levies, so as in the presence of Nasrullah Piyada Levies. The report of Chemical Expert Syed Abdullah Shah shows that the said material received by him through Deputy Commissioner Khuzdar by hand through a Levies official, in view thereof no question remains that when the samples were obtained, and who sent it to the Chemical laboratory for analysis or get the report, as such, being above this version of learned counsel having no weight, therefore, same is repelled. However, it may not be out of place to mention that simply sending of material with delay for analysis in our view makes no point on the basis of the same a culprit to be left scot-free. Again we may mention that law has not fixed any particular quantity of recovered material to be sent as a sample for chemical analysis, whereas in the present matter it appears that 100 grams charas as a sample collected from each of the packet. Thus in the above discussed circumstances we are of the view that this objection is not a' valid ground to benefit the appellant/accused.

10. Learned counsel again stressed that material was not weighed on spot so as the recovery memos were not prepared on site, as same is evident from the proceedings of the I.O. No doubt legally preparation of the recovery memos and other proceedings on F site exclude the possibility of false implication of an innocent person, however, this is the rule of caution for which the courts usually insisted, whereas in the instant case Levies officials having no any such ability to tackle such situation on afar-flung check post, as such, in such situation shifting of the vehicle along with contraband charas to Levies Thana and preparation of the memos in no way giving impression that appellant has been implicated in a false, frivolous case, particularly when the possession of contraband articles and seiner of the taxi I has been established by the prosecution. With the above discussed circumstances, we are of the view that the judgment dated 5th July, 2011, passed by learned Special Judge CNS, Khuzdar is proper and having no defect: As such, same is maintained. The appeal is dismissed. MWA/55/Q???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.