2023 PLP 1829 (YLR)

MOHSIN AKHTAR KAYANI, J.

Through this Crl. Appeal, the appellant has assailed the judgment dated 19.02.2021, passed by learned Judge, Special Court (CNS), Islamabad, whereby appellant was convicted and sentenced to imprisonment for life with fine of Rs.100,000/-. In case of default in payment of fine, the convict shall further undergo 01 year S.I. with benefit of Section 382-B, Cr.P.C. in case FIR No.140, dated 23.10.2016, under section 9-C CNSA, 1997 P.S. ANF; RD/North, Rawalpindi.

2. Brief facts referred in this case are that appellant was caught red handed by ANF officials on 23.10.2016 when appellant was coming from Peshawar to Kashmir via Rawalpindi in vehicle Suzuki Khyber No.QAE-5700 and allegedly transporting 20 Kg charas (gardha). After his arrest final challan was submitted by by I.O. PW-5, whereby appellant has denied the charges and pleaded not guilty, where-after trial court recorded 5 PWs and 1 CW, convicted and sentenced the appellant for life imprisonment with fine of Rs.100,000/-. In case of default in payment of fine he shall further undergo for 01 year S.I. Benefit of Section 382-B, Cr.P.C. has also been extended to the appellant.

3. Learned counsel for the appellant contends that entire case built up against the appellant is false and frivolous, which has been managed by ANF with mala fide as there is no possibility of recovery of huge quantity of charas from the place of back number plate of vehicle; that appellant was passenger in the vehicle who was coming from Peshawar and original accused was released by ANF official and appellant has been made scapegoat; that chemical analyst Dr. Shahzad Hussain was summoned whose testimony could only be considered for filling up of lacuna in the prosecution case which considers in favour of appellant; that vehicle was not produced before the court, even constable who has taken the complaint to the Police Station from spot was not produced before the court which further goes against the prosecution case, therefore, chain which is required in such type of cases is not justified on record, hence, appellant is entitled for benefit of doubt and acquittal.

4. Conversely, learned Special Prosecutor ANF contends that prosecution has successfully proved its charges against the appellant, even vehicle has been produced in the court; that appellant is sole accused in this case, no other accused was arrested in this case, nor was available in the vehicle at the time of recovery of 20 Kg charas; that Dr. Shahzad Hussain, CW-1 was summoned only to fulfill the requirement of judgment passed by the Apex Court though there is no technical defect in the chemical analyst report which confirms that recovered contraband was charas (gardha). 5 Arguments heard, record perused.

6. Perusal of record reveals that appellant was arrested by ANF on receiving spy information that at about 12:30 p.m. on 23.10.2016 by PW-5 Naveed Ahmed Tonio, S.I., who started checking the vehicles which were coming from Peshawar and at about 01:00 p.m. vehicle No.QAE-5700 Suzuki Khyber white colour came from Peshawar side which was driven by one person, which was stopped and checked. The person driving the vehicle was identified as Ahmed Ali (present appellant), who made disclosure that charas is available in the secret cavity, area of number plate of the vehicle on back side in which 20 Kg charas was recovered in presence of witnesses, where-after PW-5 drafted a complaint Ex.P2/A, which was transmitted to the PS for registration of criminal case through Asif Iqbal, constable, which was converted into FIR No.190, dated 23.10.2016, under section 9/C CNSA, 1997, PS ANF RD/North, Rawalpindi referred as Ex.PG, registered by PW-2 Muhammad Suleman Khan, ASI. I.O. has prepared the recovery memo Ex.PC containing 11 parcels of charas (gardha) and articles of personal search through recovery memo Ex.PD containing Rs.1200/-, CNIC colour copy, FC card, PTI card, Medical card, wallet Ex.P1 to Ex.P

6. The recovered charas has been marked as Ex.P7, the vehicle referred as Ex.P8, key Ex.P9, registration book Ex.P10, NOC photocopy Ex.P11, CV along with other documents Ex.P

12. I.O. has deposited all the recovered contraband and personal belongings of the appellant to the Moharir mallkhana, Danish Jamal, ASI, who confirms this aspect in his testimony and also confirmed that on 24.10.2016 constable Hameed Iqbal, PW-1 brought application in Urdu, docket in English along with sample seal, whereupon PW-3 handed over 10 sealed parcels containing 10/10 grams each charas along with road certificate for on ward transmission to NIH.

7. The star witness PW-4, Riazat Ali constable, who is recovery witness and Inspector Naveed Ahmed have been cross-examined at length qua the mode and manner of recovery of contraband but they remained consistent and no discrepancy has been noted, even vehicle along with its key has been placed on record which further confirms the prosecution case against the appellant/ However, PW-5 acknowledged that he has not verified the record of registration book of vehicle in question through excise and taxation Quetta as letter was written for verification but no reply has been received till recording of his testimony. This aspect is not to be considered as beneficiary in favour of appellant, though he has taken a specific stance in his statement under section 342, Cr.P.C. that "nothing was recovered in shape of narcotics from me by the prosecution. A false case was planted against me in shape of complaint as well as FIR and alleged recovery. I was a passenger in alleged car and got a lift from Peshawar to Rawalpindi from driver namely Bilal son of Zawair Gul. I.O. let-of the said driver after getting bribery from him and roped me in the instant case. At the time of arrest, I also told the I.O. that I have no concern with the alleged car as well as narcotics but instead to leave me, I.O. falsely implicated me in the case." This defense has been reiterated in all the answers, even when particular question No.8 was confronted to the appellant in his statement under section 342, Cr.P.C. qua the vehicle No.QAE-5700 being driven by him, he has again reiterated the above referred answer and further improved his version with additional claim that "I also told the I.O. that I got lift in this car and was heading towards Rawalpindi to see ailing friend who was admitted in CMH Rawalpindi. I.O. deliberately did not take any step against the above said real culprit in spite of issuing summons against him."

8. The above referred specific stance of the appellant if considered with reference to Article 122 of the Qanun-e-Shahadat Order, 1984 "when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." This aspect leads to an irresistible conclusion that burden of proving this particular fact which is in the knowledge of appellant is upon the appellant/accused, who is best man to discharge this onus as held in 2019 PCr.LJ Note 1 (Abdul Sattar Dero v. State), PLD 2002 Karachi 152 (Mayzone Pak International v. State) even no witness has been produced by the appellant, therefore, his entire defense version has lost its significance in this case.

9. On the other hand another important question has been raised qua the chemical analyst report Ex.PH, dated 28.11.2016 and Ex.P1 which concluded that samples identified to contained charas (gardha) though learned trial court has summoned CW-1 Dr. Shahzad Hussain being Senior Scientific officer as Court witness on the special request of prosecution who while appearing before the Court as CW-1 explained that he was Chief Drug Control and Traditional Medicine Division in NIH, Islamabad, who received 10 sealed parcels in case FIR No.140/2016, dated 23.10.2016 bearing the seal NT and conducted analysis, observed all protocols that all received parcels were in sealed condition and care has been applied while its result has separately been made in the register, prepared report Ex.PH and Ex.PI. He also produced protocol form in original as Ex.PJ which contains complete details of test though appellant side has cross-examined the said witness in detail and nothing has been left in favour of appellant though learned counsel for the appellant has heavily relied upon the non-availability of protocols mentioned in exhibited report.

10. We have attended the entire concept of test report of Government analyst and its evidentiary value in terms of Sections 34 and 36 of the CNSA, 1997, whereby Section 36(2) of the Act enjoys benefit of admissible as evidence of the facts stated therein without formal proof and such evidence, unless rebutted, is conclusive, therefore, report of Government analyst is pivotal in realizing the objective and purpose of the Act Similarly, rules framed under 1997 Act also plays important role where Rule 5 provides a process for proper examination of the sample in the Narcotics Testing Laboratory. This rule reflects the best practice to be adopted while dealing with examination of the sample, even in this case substantial compliance of this rule has been demonstrated. The accuracy of test and analysis and the correct application of the full protocols alone can determine if the recovered substance is a narcotic drug or a psychotropic or controlled substance though all these aspects are of technical nature and based upon procedure and test explained in the judgment report as 2018 SCMR 2039 (State v. Imam Bakhsh) where direction was issued that Rule 6 is mandatory to the extent of mentioning of full protocols in the report of Government analyst while considering this aspect, trial court has rightly summoned the CW-1 who is author of this report came in witness box and gave his testimony, explained the report as a result whereof it is not the case of defense that test conducted without protocol which admittedly losses its admissibility and reliability.

11. On the other hand minimum requirement of Rule 6 contained in the report as well as in the additional testimony of CW-1 left no ambiguity in the mind of trial court, who while exercising its powers under section 510, Cr.P.C. summoned and examined the author of report as held in PLD 2020 SC 57 (Qaiser Javed Khan v. The State), even this court in another reported judgment 2021 PCr.LJ 1520 (ANF v. Muhammad Waseem and others) acknowledged that the powers contained in Section 540, Cr.P.C. are independent and distinct which empowers the trial court to summon the witness provided the legislative intent expressly mentioned therein is fulfilled i.e. if it appears to the court that summoning of the evidence is essential to the just decision of the case. This provision is distinct from and in addition to the power contained in the proviso to Section 510, Cr.P.C. as in line with the principle's set out in 2017 PCr.LJ 1319 (Murad Ameer Shah v. Samar Pervaiz), hence, prosecution has discharged its burden in clear terms against the appellant.

12. The last point raised by the appellant is qua the non production of Asif Iqbal, constable who has taken the complaint to the PS for registration of FIR but he has not been produced in the court while relying upon 2019 SCMR 326 (Minhaj Khan v. The State) and 2020 PCr.LJ Note 133 Riaz Ahmad v. The State and another) though in both these judgments other multiple issues are the primary reasons for the purpose of acquittal of accused, therefore, highlighted aspect of non-production of witness Asif Iqbal, constable is to be considered an irregularity having mitigating effect and nothing more at this stage, especially when 20 Kg. charas has been proved to be recovered from a single person i.e. appellant.

13. In view of above, instant appeal is misconceived and the same is hereby dismissed. JK/192/Isl. Appeal dismissed.