Possessing narcotic

2020 MLD 794 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 9(c)Possessing narcoticAppreciation of evidenceRecovery of narcotic from the possession of accusedRelianceScope

Record transpired that the recovery proceedings had not been conducted at the place where the accused were taken into custody along with the car, from the dickey of which alleged contraband was recovered, rather the same were conducted at Camp Office which was at a distance of 20 kilometres

Such was not merely a minor lapse but there was very strong suspicion about the entire prosecution story

Even otherwise, complainant during the cross-examination had admitted that the recovery was not effected from the accused in his presence rather it was the Motorway Police who effected the recovery from the accused persons

Said circumstances taken together cast doubt about the happening and handing over the accused and case property to Investigating Officer

Recovery was of inconsequential, in circumstances.

2020 MLD 794 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 9(c)Qanun-e-Shahadat, (10 of 1984), Art. 129(g)Possessing narcoticAppreciation of evidenceBenefit of doubtWithholding material evidenceEffect

Prosecution case was that five toras of charas containing 90 packets, each packet weighing 1200/1200 grams, total weight 108 kilograms, were recovered from the vehicle of the accused

Record showed that neither the accused were taken into custody by the Investigating Officer at the spot nor the case property was handed over to him at the place of occurrence rather the same had already been brought to the Base Camp (Motorway Police) prior to the arrival of the Investigating Officer at the spot

No attempt was made in the present case to show that the case property was kept in safe custody after recovery till handing over to Investigating Officer at Base Camp which was at a distance of 20 kilometers from the place of diversion from where the accused were intercepted by Patrolling Officer

Said Patrolling Officer during the cross-examination had deposed that when they left the diversion for the camp, the car of the accused persons was driven by Assistant Patrolling Officer

Surprisingly neither the name of said Assistant Patrolling Officer was mentioned anywhere nor he was produced as a witness to prove recovery of narcotic from the accused and its safe custody and safe transmission from the place of diversion from where the accused were apprehended and arrested by Patrolling Officer to the Camp Office where the proceedings were conducted subsequently by Investigating Officer

Testimony of said Patrolling Officer was crucial and important in that regard

Presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 could be that had the said witness been produced by the prosecution in the witness box, he would have not supported the prosecution version

Sole deposition of Senior Patrolling Officer required corroboration in that regard but the same lacked, therefore, his credibility without any corroboration was not safe to be believed

Statement of Senior Patrolling Officer before the Trial Court was replete with improvements/contradictions which could not be said to be insignificant

Another legal lacuna was directly related to the admissibility of receipt through which delivery of narcotic, the car and the custody of two persons etc. was made to Investigating Officer

Neither it found mention the time and place where it was made nor it disclosed the name of person from whom these articles were recovered

Even the said receipt did not bear the name of the officer who delivered the said articles, narcotic and persons, etc.

Stamp bearing on the receipt was of Admin Officer but name of the said officer did not appear in the stamp

Prosecution had not offered any explanation for failure to produce the original receipt

Attested photocopy of the receipt could not be relied upon for proving the delivery of narcotic, the car and the accused etc. for the simple reason that original of that had not been placed on record and no permission was taken by the prosecution to lead secondary evidence

Prosecution must have taken prior permission of the court to lead the secondary evidence

Prosecution had failed to make out any case to exhibit photo-stat copy of the receipt as conditions required for leading secondary evidence were missing, hence, said aspect had led to hold that photo-stat copy of receipt was not brought on record in accordance with law, hence, could not be considered in any manner

Complainant had not witnessed as to who was on the steering wheel of the car and driving at the time of occurrence

Record was silent as to how and from which scale the recovered contraband was weighed

Record transpired that after taking custody of the accused as well as possession of the narcotic, Investigating Officer did not take them to Police Station to register the FIR and instead deputed a Sipahi to take his written complaint, which he wrote out when the accused were taken into custody to Police Station which was at a distance of 100 kilometres from the place of recovery and the F.I.R. was registered on the basis of said written complaint

Sipahi was directed to go alone to the police station which was at a so long distance with the written complaint whilst Investigating Officer could himself easily have driven there in the car

Said fact as to how Sipahi came to Police Station remained in mystery

Non-production of said Sipahi who took the written complaint and the inexplicable conduct of the complainant in not proceeding to the police station himself to register the FIR were matters of concern and collectively of incredulity

Although 90 sealed parcels of samples were separated from the charas recovered from the accused-appellant and were transmitted in the office of Chemical Examiner

However, report submitted by the Chemical Examiner could not be considered to be conclusive proof regarding the status of the recovered substance and could not be relied upon for sustaining conviction of the accused

Burden always remained on prosecution to prove affirmatively right from the arrest of the accused, seizer of the recovered contraband deposited with moharrar on the same day and till it reached the office of Chemical Examiner

Said facts must be in line but the facts of the present case created doubt on the case of the prosecution and benefit of reasonable was to go to the accused

Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2013 MLD 425 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.516-AControl of Narcotic Substances Act (XXV of 1997), S.9(c)Constitution of Pakistan, Act. 199Constitution petitionPossessing narcotic drugSuperdari of vehicleVehicle in question exclusively belonged to accused petitioner without any counter claimant

Said vehicle was neither shown to be the case property nor the same was shown by the prosecution to have any nexus with the story mentioned in the F.I.R.

Trial Court had allowed the Superdari of the vehicle to the father of the accused petitioner, who had been convicted and sentenced in the case

Father of accused being a British National had left the country

To leave the vehicle continuously with the ANF Officials might cause irreparable loss to the accused

All the legal formalities for release of the vehicle stood completed

Special Prosecutor ANF had no objection for delivery of the vehicle to the agent of the accused

Accused was directed to move an application before Trial Court seeking compliance of the earlier order of Superdari of the vehicle, who would summon the accused petitioner from the prison, record his statement and on his consent deliver the vehicle on superdari to his counsel

Constitutional petition was allowed accordingly.

2012 YLR 2503 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497(2)Control of Narcotic Substances Act (XXV of 1979), S.9Possessing narcoticBail, grant ofFurther inquiry

Investigation .in the case had been completed and the quantity of alleged contraband recovered cumulatively made the case of accused of further inquiry

Quality of contraband allegedly recovered would surely not bring home a punishment saddling the case in the prohibitory clause of 5.497, Cr.P.C.

Accused was allowed bail.

2012 MLD 1542 PESHAWAR-HIGH-COURT Judicial Precedent

S.497Control of Narcotic Substances Act (XXV of 1997), S.9(c)Possessing narcoticBail, grant ofAccused had no past criminal history, as neither he was previously booked for such crime nor had been convictedCase being of borderline, benefit of the same would go to accused

Accused was admitted to bail, in circumstances.

2012 YLR 85 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 497(5) & 498Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 51Possessing narcoticPetition for cancellation of pre-arrest bail

Petitioner was earlier arrested in a case registered under S.9(c) of Control of Narcotic Substances Act, 1997 at the instance of S.H.O./complainant

Petitioner was found innocent in the investigation and report for his discharge was submitted and he was acquitted from the charge

Inquiry transpired that S.H.O. had falsely implicated the petitioner in said case in collusion with respondents

Respondents having been granted bail, petitioner had filed petition for cancellation of bail granted to the respondents

Sufficient material was available to connect the respondents with the commission of the offence, punishment of which fell within the prohibitory clause of S.51 of Control of Narcotic Substances Act, 1997

Respondents, in circumstances, were required by the police for further investigation

Petitioner's innocence having been proved during the investigation and thereafter, his acquittal from the charge, prima facie had proved that the recovered 'charas' belonged to the respondents

No ill-will or element of mala fide on the part of the prosecution was found, accused/respondents were not entitled to the concession of pre-arrest bail, which was an extraordinary relief

Order granting pre-arrest bail to S.H.O., was also patently illegal as the Special Judge had ordered not to arrest him without permission of the court

If bail granting orders were not recalled, Investigating Agency was likely to be deprived of its right to investigate and collect further evidence against respondents

Impugned orders, in circumstances, having resulted in miscarriage of justice, order granting pre-arrest bail to respondents, were cancelled in circumstances.

2011 MLD 1788 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Rr. 32, 33, 34 & 198Control of Narcotic Substances Act (XXV of 1997), S.9(c)Constitution of Pakistan, Arts.199 & 45Constitutional petitionPossessing narcoticSentence, reduction inSpecial remission from PresidentTrial Court convicted petitioner and sentenced him to suffer 14 years' R.I.Appellate Court, in appeal, reduced sentence of 14 years to 10 years and rest of the sentence was maintained

During pendency of appeal, President of Pakistan, awarded "Special remission" in sentences of convicted prisoners to the extent of one forth of total sentence awarded by the court

Petitioner/ convict claimed that at the time, when the remission was awarded by the President, his sentence being 14 years, he was entitled to get his one forth remission on the basis of 14 years sentence

Superintendent jail declined his request

Validity

Sentence awarded to the petitioner by the Trial Court could be considered as final, when it was not challenged in higher forum, whereas in the present case it was challenged in appeal

Final verdict of the last higher forum/Appellate Court, with its variation, if any, would be considered as sentence

Sentence had been reduced by the Appellate Court on the request of petitioner from 14 years to 10 years and the petitioner had not pressed his appeal on merits, which would mean that he had accepted the conviction awarded by the Trial Court with a variation and reduction in the quantum of sentence

Final sentence of the petitioner, in circumstances was 10 years' R.I. and not 14 years, unless varied by the higher forum

After reduction of sentence from 14 years to 10 years, sentence of 10 years having attained finality, petitioner was entitled for one forth remission on his reduced sentence of 10 years, which had attained finality

Jail authorities were justified in calculating the Special Remission on the basis of 10 years sentence instead of 14 years

Constitutional petition was dismissed.

2010 YLR 2447 PESHAWAR-HIGH-COURT Judicial Precedent

S. 497Control of Narcotic Substances Act (XXV of 1997), S.9(c)Possessing narcoticBail, grant ofAccused stood implicated in the case on the basis of his statements recorded by the PoliceAs to what was the legal worth of the statement of accused recorded by the Police, needed no explanation

Statement so recorded, in no way could constitute reasonable grounds to believe that accused was guilty of the offence charged with

Accused was admitted to bail, in circumstances.