[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
KHALIQ DAD and another—Appellants
Versus
The STATE—Respondent
Criminal Appeal No. 126 of 2022, decided on 16th September, 2022.
(a) Control of Narcotic Substances Act (XXV of 1997)—
—-S. 9(c)—Possession of narcotics—Appreciation of evidence—Contradiction in statements of the prosecution witnesses—Effect—Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car—Statement of Prosecution Witness (PW), constable, on the basis of whose report the FIR was registered, revealed that though he reiterated and remained firm to what he had recorded in the crime report, however, he did not mention about calling PW/Investigating Officer (‘I.O’) at the check post, but, while testifying before the Trial Court, he improvised his statement while stating that he informed him(I.O) whereafter he came to the check post and to whom he presented Murasila, whereas I.O/PW stated that while he was present in Levies Station Murasila was received by him, whereupon he registered the FIR and then went to the Check Post—Complainant and I.O both as PWs belied and contradicted each other on the receipt of Murasila and arrival at the crime scene, besides the fact that in the report and FIR nothing as stated was recorded—Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence—Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants from the charge, extending them the premium of benefit of doubt—Appeals against conviction were allowed, in circumstances.
(b) Control of Narcotic Substances Act (XXV of 1997)—
—-S. 9(c)—Possession of narcotics—Appreciation of evidence—Unassembled dashboard of the car, non-production of—Effect—Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car—Record revealed that the prosecution failed to produce the unassembled dashboard, showing the cavities, wherein the narcotics were concealed—Recovery witness (PW) also did not mention in his statement that as to how and by whom the dashboard was unassembled on the spot with further failure by the prosecution to produce the unassembled dashboard in the court for exhibiting—Neither statement of said witness nor the impugned judgment, depicted that the car was physically examined by the defence or state counsel or by the Trial Court—Thus, statements of the prosecution witnesses were not confidence inspiring and untrustworthy—Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence—Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants from the charge, extending them the premium of benefit of doubt—Appeals against conviction were allowed, in circumstances.
(c) Control of Narcotic Substances Act (XXV of 1997)—
—-Ss. 9(c) & 36—Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4, 5 & 6—Possession of narcotics—Appreciation of evidence—Transmission/dispatch of sample for test or analysis—Safe custody and transmission of samples not established—Effect—Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car—Investigation Officer (I.O) as a Prosecution Witness (PW) in his examination-in-chief did not mention a word regarding the parcels of heroine and opium, including samples given to the In-charge Malkhana (PW) and receiving back from him and handing over to constable (PW) for onward transmission for chemical analysis to Forensic Science Lab—Prosecution had failed to prove the safe custody and transmission of samples—Protocols provided under section 36 of the Control of Narcotic Substances Act, 1997 and Rr. 5 & 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had not been complied with—Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence—Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants of the charge, extending them the premium of benefit of doubt—Appeals against conviction were allowed, in circumstances.
State v. Imam Bakhsh 2018 SCMR 2039; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Qaiser Khan v. The State 2021 SCMR 363 and Zubair Khan v. The State 2021 SCMR 49 ref.
(d) Control of Narcotic Substances Act (XXV of 1997)—
—-S. 9(c)—Possession of narcotics—Appreciation of evidence—Having knowledge about narcotics in vehicle—Not established—Prosecution case was that from the accused persons 2 kgs heroine and 25 kgs opium were recovered having been concealed in the cavities made in the dashboard of the car—One accused was found to be sitting alongside the driver; however, the prosecution failed to establish that he had any knowledge about the narcotics having been concealed in the secret cavities of the dashboard—Prosecution had failed to prove the indictment and the reasoning assigned by the Trial Court was based on misreading of evidence as well as improper appraisal of evidence—Thus, High Court set aside the impugned judgment passed by the Trial Court and acquitted both the appellants of the charge, extending them the premium of benefit of doubt—Appeals against conviction were allowed, in circumstances.
Hussain Shah v. State PLD 2020 SC 132 ref.
Khalid Ahmed Kubdani, Fatima Nazar Notezai and Muzdalifa Khan for Appellant.
Yahya Baloch, Additional Prosecutor General (APG) for Respondent/State.
Date of hearing: 18th August, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J.—Khaliq Dad and Basharatullah were tried by a learned Judge of Special Court constituted under the Control of Narcotic Substances Act, 1997, Khuzdar (“Trial Court”) pursuant to an indictment reported in FIR bearing No.01 of 2021 (Ex.P/5-A) registered within the precincts of Levies Station Naal, Khuzdar under the offence punishable under section 9(c) Control of Narcotic Substances Act, 1997 (“Act of 1997”) vide judgment dated 24th February 2022, (“impugned judgment”) for possessing heroine two packets, each weighing 1-kg (total 2-kg) and 25 kg opium concealed in the dashboard of a car bearing Registration No. CN-8655 driven by Khaliq Dad accompanied by Basharatullah, culminating in conviction and sentence under section 9(c) of the Act of 1997 to suffer life imprisonment with fine of Rs.100,000/- each and in default thereof to suffer further one year SI, inclusive of the premium of section 382-B of the Criminal Procedure Code, 1898 (“Cr.P.C.”).
2. Narration made in the FIR (Ex.P/5-A) reveals that complainant constable Abdul Waheed (PW-1) on 30th January 2021 at 11:30 am was present at the check post of Garok Tehsil Naal, when a Toyota Corolla car 2.OD bearing Registration No.CN-8655 came from Naal, wherein on the driver seat appellant Khaliq Dad and beside him Basharatullah were found sitting, who were suspected; during search of the car, from the secret cavities made in the dashboard, 2 packets of heroine weighing 2 kg and 25 packets of opium weighing 25 kg were recovered.
3. After necessary investigation, both the appellants were put on trial, where both of them denied the charge and as such to bring home charge the prosecution produced five witnesses. At the end of the trial, the appellants were convicted and sentenced so mentioned in the para supra.
4. Learned counsel for the appellants inter alia contended that the appellants have been roped in and have been substituted by letting of the real culprits. He further stated that the parcels have not been prepared on the spot, which has made the instant case highly doubtful. He added further that the case of Basharatullah is on far better footings as the prosecution has failed to prove that he had any knowledge about the narcotics allegedly concealed in the secret cavities of dashboard. He further submitted that safe custody of the narcotics from the point of recovery to the FSL has not been proved in accordance with dictum expounded in the case of State v. Iman Bakhsh (2018 SCMR 2039) and Mst. Sakina Ramzan v. The State (2021 SCMR 451).
5. Contrarily, learned APG refuted the contention of learned counsel for the appellants and submitted that the prosecution has proved its case beyond any reasonable doubt. According to him, the prosecution has also established the safe custody and transmission to FSL and that the trial court has rightly recorded a verdict of guilt, thus, prayed for dismissal of the appeal.
6. Heard. Record has been gone through. Statement of constable Abdul Waheed (PW-1) and his report (Ex.P/1-A) on the basis whereof FIR (Ex.P/5-A) has been minutely scrutinized. He reiterated and remained stick to what he had recorded in the crime report. He did not mention about calling Naib Risaldar Rasool Bakhsh Investigating Officer (“I.O”) (PW-5) at the check post, however, while testifying before the court, he improvised his statement; he stated that he informed him, whereafter I.O (PW-5) came to the check post whom he presented murasila (Ex.P/1-A), whereas Rasool Bakhsh I.O (PW-5) stated that while he was present in Levies Station murasila (Ex.P/1-A) was received by him, whereupon he registered the FIR (Ex.P/5-A) and then went to the Garok Check Post. The complainant Abdul Waheed (PW-1) and Rasool Bakhsh I.O (PW-5), both belies and contradicts each other on the receipt of murasila and arrival at the crime scene, besides the fact that in the report (Ex.P/1-A) and FIR (Ex.P/5-A) nothing as stated was recorded.
Application (Ex. P/1-A) on the basis whereof FIR (Ex.P/5-A) was lodged reveals that the accused persons and the recovered narcotics were brought to the police station inferring to believe that the parcels were not made at the place of recovery.
7. Constable Muhammad Javed (PW-2) is recovery witness who recovered narcotics from the cavities made in the dashboard of the car. He stated that in his presence a car was stopped and from the concealed cavities made in the dashboard, 2 kgs heroine and 25 kgs opium were recovered, whereof two samples weighing 5 grams each from the 2 packets of heroine were separated, making parcels Nos.1 and 2, whereas remaining heroine was put in a parcel bearing No.3 and that similarly each packet of opium was weighed to be 1 kg, whereof 5 grams from each parcel was separated and parcels Nos. 4 to 28 were prepared, whilst the remaining opium was put in a parcel bearing No.29, all of the said narcotics were recovered vide memo of recovery (Ex.P/2-A). He produced 2 packets of heroine powder as Arts.P/2 and 3, whereas 25 packets of opium as Art.P/6-36. He produced 2.OD car bearing No.CN-8655 as Art.P/37, taken into possession through recovery memo (Ex. P/2-C).
The prosecution failed to produce the unassembled dashboard, showing the cavities, wherein the narcotics were concealed. Recovery witness (PW-2) also did not mention in his statement that as to how and by whom the dashboard was unassembled on the spot with further failure by the prosecution to produce the unassembled dashboard in the court for exhibiting. Neither from his statement nor from the impugned judgment, it depicts that the car was physically examined by the defence or state counsel or by the learned Trial Judge.
In view of the above, statements of the prosecution witnesses are not confidence inspiring and untrustworthy, whereupon explicit reliance would not be safe.
8. In so far as the safe custody and transmission is concerned, that is also not up to the mark. Constable Muhammad Essa (PW-3) In-charge Malkhana deposed that on 30th January 2021, I.O (PW-5) delivered him parcels Nos.1 to 30, which he deposited in Malkhana. He also did not mention as to whether the I.O (PW-3) after deposit of the parcels on 30th January 2021 came to him and took back the said parcels for onward transmission for chemical analysis. Constable Rehmatullah (PW-4) stated that on 15th April 2021, I.O (PW-5) handed over parcels Nos.1, 2 and 4 to 28 to get examine the same for chemical analysis, which were delivered by him on 16th April 2021 to Director Laboratories and Chemical Examiner Karachi (“FSL”) and on 7th May 2021 received the report thereof (Ex.P/5-D) and on 8th May 2021 handed over the said report to I.O (PW-5). Rasool Bakhsh Naib Risaldar-I.O (PW-5) in his examination-in-chief did not mention a word regarding the said parcels of heroine and opium, including samples given to the In-charge Malkhana (PW-3) and receiving back from him and handing over to constable Rehmatullah (PW-4) for onward transmission for chemical analysis to FSL, henceforth, whereof there can be no other view that the prosecution has miserably failed to prove the safe custody and transmission. Reliance may be placed upon the cases of “State v. Imam Bakhsh” (2018 SCMR 2039), “Mst. Sakina Ramzan v. The State” (2021 SCMR 451), “Qaiser Khan v. The State” (2021 SCMR 363) and “Zubair Khan v. The State” (2021 SCMR 49). The excerpt of Mst. Sakina Ramzan’s case is as infra;
“The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with
the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under NSA and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i. e., in the safe custody or safe transmission of the narcotic drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner.”
9. Protocols provided under section 36 of the Act of 1997 and Rules 5 and 6 in view of the dicta rendered by the Hon’ble Supreme Court in the well celebrated case of Imam Bakhsh published in 2018 SCMR 2039 have not been complied with.
10. So far as the case of the appellant Basharatullah is concerned, whose case is far better; he was found to be sitting alongside the driver; the prosecution has miserably failed to establish that he had any knowledge about the narcotics having been concealed in the secret cavities of the dashboard. In this regard reliance can be placed upon the case of “Hussain Shah v. State (PLD 2020 SC 132). Relevant excerpt follows as under;
“6. As far as Abdul Sattar appellant is concerned it was alleged by the prosecution that he was a cleaner and a helper of his co-convict namely Hussain Shah and he was travelling in the same vehicle when the said vehicle was intercepted by the raiding party. It has been pointed out before us that that according to the evidence brought on the record Abdul Sattar appellant also knew about existence of a cavity in the body of the relevant vehicle but nothing had been said by any prosecution witness about the said appellant having the requisite knowledge about availability of narcotic substance in such cavity of the vehicle. As a matter of fact no evidence worth its name had been brought on the record to establish that the said appellant was conscious about availability of narcotic substance in a secret cavity of the relevant vehicle in which he was travelling along with its driver. The law is settled by now that if the prosecution fails to establish conscious possession or knowledge in that regard then a passenger cannot be convicted solely on the basis of his availability inside a vehicle at the relevant time. This appeal is, therefore, allowed to the extent of Abdul Sattar appellant, his conviction and sentence recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. Abdul Sattar appellant shall be released from the jail forthwith if not required to be detained in connection with any other case.”
11. For the foregoing reasons, we believe that the prosecution has miserably failed to prove the indictment and have concluded that the reasoning assigned by the trial court are based on misreading of evidence as well as improper appraisal of evidence.
Thus, we are persuaded to set aside the impugned judgment dated 24th February 2022 drawn by the Trial Court and acquit both the appellants of the charge, extending them the premium of benefit of doubt.
Appellants be set free, if not detained in any other case.
MQ/46/Bal. Appeal allowed