Kashmaloo Vs The State

.Iudgmcnt Shcct I'trJ,SHAWAR HIGH COURT, I}ANNU I}ENCH (Judicial Department)

Cr.A No.258-B of 2022

Kashmaloo Vs 'l'hc Statc

JADGMENT

lror z\ppcllant: Mr. Imran Ali Shah Mandan Advocatc lror Statc: Hafiz Muhammad Hanif, Asstt. A.G.

I)atc o1'hcaring: 04.04.2023

SI'IAIIID KHAN. J.-- Appellant, Kashmaloo, altcr having bccn tricd by thc lcamcd Judgc, Spccial Clourt / Additional Scssions Judgc-ll, Karak, was convictcd^and scntcnccd undcr ? scction 9(d), Khybcr l)akhtunkhwa Control of Narcotic Substanccs Act, 2019, to rigorous imprisonmcnt for lifc with Ilnc in thc sum of Rs.5,00,000/- or in dclault thercol, to suffcr l2 months S.l. vidc judgmcnt, datcd 15.12.2022 rcndcrcd in casc IrIIt No.252, datcd 21.08.2021 rcgistcrcd undcr scction 9(d) ihid at Policc Station Sabirabad, District Karak. It obligcd thc appcllant to approach this Cou( through thc subjcct appcal.

2.Ilricf, but rclcvant facts, culminating in rcgistration of thc casc, arc that on 21.08.2021 at around l7:00 hours, complainant Qabit Khan SllO (PW-06) accompanicd by policc contingcnt had nradc barricadc at Kamran Shahccd Chowk, whcn noticcd a

pcrson coming liom 'l'abbi sidc with two cartons in his hands.

'['hc pcrson bcing suspcctcd was stoppcd whcrc thc cartons, in his posscssion, wcrc scarchcd which lcd to rccovcry of l0 / l0 packcts ofCharas, cach ofwhich containcd diffcrcnt quantitics.

Aftcr duc wcighmcnt, thc total quantity camc out 24280 grams and as such, thc Charas wcrc takcn into posscssion al1cr scparating samplc parccls of 05 / 05 grams from cach o[ thc rccovcrcd packcts lbr thc purposc of chcmical analysis at thc Iiorcnsic Scicncc Laboratory vidc rccovcry mcmo lix.PW-6/2, duly attcstcd by marginal witncsscs. 'l'hc pcrson was accordingly arrcstcd, who discloscd his namc as Kashmalo son ol' Kafccl rcsidcnt of Jamal Khcl, 'l'chsil Landi Kotal, District a? Khybcr. Murasila was draftcd & prcparcd and was scnt to thc policc station through constablc Muhammad Arif No.380 for rcgistration of thc casc. I lcncc, thc ibid l;lll.

3.Aftcr complction of invcstigalion, complctc challan was drawn and accordingly scnt up lor trial. 'l'o substantiatc its vcrsion, thc prosccution placed reliancc on thc account / statcmcnts of as many as 08 witncsscs. On closc of prosccution cvidcncc, statcmcnt ol accuscd appcllant was rccordcd undcr scction 342 Cr.l'.C, whcrcin, hc profcsscd innoccncc and falsc implication, howevcr, hc ncithcr oplcd to bc cxamincd on oath as providcd undcr scction 340(2) Cr.l'.C nor wishcd to producc dclcncc cvidcncc. Altcr hcaring argumcnts, thc lcarncd trial

Cou( arrivcd at thc conclusion that thc prosccution has succcssfully brought homc chargc against thc appcllant, as such, vidc impugncd judgmcnt, datcd 15.12.2022, convicted and sentcnccd the appcllant as mentioncd abovc. Ilcncc, the instant appcal against thc judgmcnt of conviction.

4.Wc havc hcard at a considcrablc lcngth lcamcd counscl lor the appcllant as wcll as thc worthy Assislant Advocatc (lcncral rcprcscnting thc Statc and scanncd through thc rccord, with thcir valuablc assistancc.

5.Itccord rcvcals that thc accuscd appcllant, altcr having bccn bookcd in thc instant case, was tricd by thc lcamed Judge ? Spccial Court / Additional Sessions Judgc-ll, Karak and on conclusion of thc trial, thc lcarncd trial court arrivcd a1 thc conclusion that thc prosccution has succcssfully brought homc chargc against thc appcllant / accused, as such, thc Court was plcascd to convict him for thc chargcs vidc thc impugned judgmcnt. 'l-hc appcllatc Court shall cxaminc as to whcthcr the lcarncd trial courl appreciatcd thc cvidcncc so fumished in its lcttcr & spirit and as to whcthcr thc impugncd judgmcnt is thc outcomc of application ol judicial mind to thc lacts and circumstanccs ol thc casc. 'l'hcrc is no dcnial of thc fact that undcr thc ibid Act, stringcnt punishmcnts arc providcd for the ol'fcnccs thcrcundcr and whcn thc punishmcnt is scvcrc, then thc prosccution is cqually burdcncd to provc thc charges to thc

hilt. In thc prcscnt casc, thc prosccution cxamincd as many as 08 wilnesses and to ascertain as to whcther thc leamed trial judgc was justificd to convict the appcllant, thc Cou( lclt it csscntial to rcvisit and rc-appreciatc the cvidence once apprcciated, so that miscarriage ofjusticc could be avoided.

6.thc prosecution case as sct up is that on 21.08.2021 at about l7:00 hours, complainant Qabil Khan SII() (PW-06) accompanicd by policc contingcnt had installed / improviscd barricadc at Kamran Shahccd Chowk, whcn a pcrson having two cartons in his hands, on his way lrom 'l'abbi sidc, was v a'\ ? noticcd and stoppcd being suspected. 'l'he cartons in his posscssion were scarched on the basis where l0 / l0 packets containing Charas wcrc rccovcrcd lrom thc samc. Aflcr wcighmcnt, thc Charas camc out 24280 grams in toto. Out of thc rccovcrcd contraband, samplc parccls weighing 05 / 05 grams wcrc scparatcd lrom each packct and scalcd in separate parccls for chemical analysis, whereas, thc remaining quantity was packcd and scalcd separately vidc rccovery mcmo Ilx.PW-

612.'l'hc complainant being thc star witness was cxamincd as l)W-06, who statcd that on thc day ol incidcnt, whilc on barricadc duty, hc noticcd thc accused appcllant with cartons in his hands; that thc accuscd appcllant aftcr bcing suspcctcd was stoppcd and thc cartons were scarchcd whcrefrom thc contraband in shapc of 10 / 10 packcts ol Charas were

rccovcrcd; that out ol'cach packct, hc scparatcd samplc parccls oi05 / 05 grams lor thc purpose of chcmical analysis at FSL, which hc packcd & scalcd in parccls No.l to l0 and 12to21 rcspcctivcly, whcrcas, thc rcmaining quantity was packcd and scalcd in separatc parcels No.ll and 22 respectively; that he arrcstcd thc accuscd appellant and issucd his arrcst card and also draflcd & prcparcd Lhc murasila, it was scnt to Policc Station through constable Muhammad Arif # 380 and that on arrival of Invcstigating Officcr to thc spot, hc pointcd him ou1 thc sitc plan as also thc rccovcrcd stuff. 'l'his witncss was cross- cxamined by thc defense, but nothing dclrimental to the prosccution casc could be extracted from his mouth. The witncss was cxamincd rcgarding his arrival a1 thc spot, thc manncr in which thc accuscd appcllant was apprchcndcd and thc modc of rccovcry from his dircct posscssion but hc rcmaincd firm and consistent on matcrial lacts & circumstanccs. In ordcr to ascertain as to whether the complainant was tclling the whole truth and as to whether the incidcnt occumcd in thc modc, manncr and thc statcd timc, the Court lccl it csscntial to go through thc statcmcnt of Nasccr Iqbal (PW-08), who was present with complainant at the timc and placc ofrccovcry and that in his prcscncc, the rccovery was cll'cctcd frorn thc posscssion ol accuscd appcllanl. 'l'his witness was cross-examincd on material aspccts of the case, but he

rcmaincd catcgoric to what thc complainant statcd and supportcd thc contcnts of rccovcry mcmo Ilx.PW-612. 'fhe witncss supportcd thc mode and manncr in which the accused appcllant was stoppcd and thc process of scarch, scizure and arrcst was carricd out followed by separation and sealing ofthe parccls on thc spot. 'l'hc witncss discloscd all thc cvcnts in thc manncr it occurrcd right from thc bcginning till thc cnd. 'l'hc dcposition madc by this witncss is natural and complctcly in linc with vcrsion of thc prosccution casc. 'l'hc policc off,rcial, who transmittcd thc murasila rcport from spot to the PS and thc onc, who incorporatcd its contcnts in thc shape of IrlR llx.PA, wcrc produccd and cxamined as PW-04 and PW-05

rcspcctivcly. 'l'hc lattcr bcing thc camicr of murasila, tcstilicd that it was hc who took the samc from spot to thc PS wherc hc handcd it to thc formcr, whcrcas, thc formcr having rcgistcrcd thc IrlR soon on rccciving thc murasila, tcstificd in that respcct.

Iloth thcsc witncsscs rcmaincd firm & consistcnt as far as transmission of murasila, its receipt and incorporation of its contcnts in shapc ol IIII arc conccrncd

7.'l'hc invcstigating officcr was cxamincd as PW-03, who, inter alia, statcd that aftcr rccciving copy of thc I;.I.R, hc visitcd thc spot whcrc hc prcparcd the sitc plan on pointation of complainant as also thc recovcry mcmo Ilx.PW-211 dlly attcstcd by marginal witnesses.'l'he witncss furthcr stated that

hc placcd on filc copy of daily diary pcrtaining to thcir dcparturc from, and arrival at, thc policc station in conncction with invcstigation and also thc IiSL rcport Iix.PZ regarding the rcsult of sluff rccovcrcd. l'hc investigating officcr was cross cxamincd on matcrial aspccts of thc casc, but his testimony could not bc shattcrcd and hc rcmaincd catcgoric to thc lactum ol contraband bcing rccovcrcd from thc accuscd appcllant by thc complainant and thc proccss of invcstigation which he carricd ou1. Muharrir of the policc station was examincd as PW- 01, who affirmcd that it was hc who scnt through constablc Itahim tlllah No.467 thc casc propcrty to IiSL aflcr making i1s cntry in Itcgistcr No.l9, maintaincd for thc purposc. Similarly, constablc Itahim tjllah No.467 was cxamincd as PW-07, hc too, whilc affirming thc dcposition madc by PW-01, statcd that it was hc, to whom thc sample parccls alongwith application and routc ccflificatc werc handcd ovcr by Muharrir for transmission to ISL Pcshawar, which hc accordingly transmitlcd and on rctum, handcd ovcr to Muharrir of thc police station routc cc(illcatc duly stampcd by thc conccmcd official ol' lfSL Pcshawar. 'l'hc two wcrc subjcctcd to lcngthy cross cxamination, but thcy remaincd in harmony with cach othcr as lar as the datc, timc and mode & manncr of transmission and handing ovcr of thc parccls to thc conccrncd olficial at I'SL are

conccmcd and nothing dctrimcntal could bc brought out from thcir mouth.

8.All thc witncsses havc narratcd thc episodc lna straightforward manner and remained consistent as rcgards the modc & manncr in which thc accuscd appcllant was arrested, thc proccss of scarch and scizurc which was carricd out, wcighmcnt of contraband and scparation oI samplcs from thc packcts couplcd with its scaling in scparatc parcels, arrival of invcstigating officcr to thc spot and thc proccedings hc conductcd. Kccping in vicw thc consistcncy in the tcstimony of prosccution witncsscs in juxtaposition with thc collecled a--l cvidcncc vis-d-vis thc pcculiar facts & circumstanccs, the prosccution has not only bccn succcssful in proving thc factum ol'rccovcry, right lrom thc bcginning till thc cnd, but has also bcon succcssful in proving safe custody of the rccovered contraband and its safc transmission to thc Forensic Scicncc Laboratory, whcrc thc rcport l;,x.P7, was rcceived in positive and as such, it has further strcngthencd the casc of the prosccution. It is pcrtincnt to mcntion that thc rccovcry was clfcctcd on 21.011.2021, whcrcas, thc samplc parccls wcrc scnt to, and rcccivcd by, thc laboratory on 24.08.2021, so for all intcnts and purposcs, thc requircment o[ Itulc-4 of the Control o I' Narcotic Substanccs ((iovcrnment Analysts) Rulcs, 200 I pcrtaining to dispatch of samplc parcel to thc laboratory within

72 hours, which, though is dircctory in naturc, but cvcn thcn stood lulfillcd.

9.'l'hough, it was agitatcd time and again that safc custody of thc rccovcrcd contraband has not bccn provcd, but wc arc not convinccd. As statcd abovc, wc havc bclbrc us thc tcstimony ol Muharrir of thc policc stalion who was cxamincd as PW-01 and thc constablc who transmittcd thc samplc parccls to thc l.'SL as PW-07. 'l'hc witncss dcposcd in a straightforward manncr that hc took out thc samplc parccls from Maal Khana and sent thc samc through Constablc Rahim tlllah No.497 (PW-07), who klo alfirmativcly dcposcd in that rcspcct. Whilc substantiating ? sal'c custody, thc wil.ncss madc rcfcrcncc to cntry madc in I{cgistcr No.19, which is availablc on filc as Iix.PW-3/5. 'l'his piccc of cvidcncc supports thc vcrsion of PW-O1 with regard to salc custody. 'l'hc dcfcncc failcd to cross cxaminc thc witncss cithcr regarding thc safc custody or the cntry madc in Rcgistcr No.l9 in that rcspcct. As thc witncss was not cross cxamincd on rnatcrial point, so thc provisions of Articlc I 33 of thc Qanun-c- Shahadat Ordcr, 1984 can bc presscd into scrvicc and as such, this aspcct ol thc casc would bc dccmcd to havc bccn admittcd by thc defcncc. Wisdom could wcll bc dcrivcd from thc law laid down in the casc ol "Muhammad Raliq Vs Abdul Aziz" O02l SCMR I8O5 S eme Courl. whcrcin it has bccn hcld that:

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"It is seltled that a material point of slatement of a witness which is not

cross-examined is deemed to huve

been admified by the other side."

10.Ilcsidcs, thc casc property was duly dcpositcd in Maal Khan by Muharir ol thc police station on the samc day, thc samc fact is cvidcnt lrom daily diary datcd 21.08.2021 (Ex.PW- 3/4). 'l'hc Muharrir whilc appcaring as PW-01 too affirmcd in his cross cxamination that it was thc complainanl, who handed him ovcr thc casc property on the day of recovery. Though, lcarncd counscl lbr thc appcllant altcrnptcd to harvcst thc rcap ol' omission on part of complainant to hand ovcr thc casc propcrty to thc invcstigating officcr on thc spot afler his arrival, but wc cannot ignorc that on onc hand, thc lactum of rccovery has othcrwisc bccn provcd to thc hilt, whcrcas, on the other, the prosccution has succcssfully provcd safe custody of the rccovcrcd contraband coupled with its timcly lransmission to thc l;S1,, so such omission at thc most can bc intcrprctcd to bc inclficicncy of both thc complainant to hand it ovcr and the invcstigating officcr as wcll, to takc thc samc on spot. 'l'hcrc is no cavil to thc proposition that whcn guilt of accuscd pcrson is othcrwise provcd through confidencc inspiring evidence, then mcrc incfficicncy on part of invcstigating officer could not be takcn a solc ground lor acquitlal, that too, in a casc involving

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such a hugc quantity of narcotics. Wc cannot ignorc that thc mcnacc of drug addiction is a potcntial thrcat to our socicty, as it advcrscly affccts thc lives of many innocent youngstcrs and as such, kccping in vicw thc hugc quantity so rccovcred, it can ncvcr bc dcnicd that such quantity was solcly mcant lor thc purposc of scll. 'l'hc Lcgislaturc kccping bcforc thc incrcasing tcndcncy of this cvil was conscious cnough to bring about lcgislativc strictncss in thc form of thc 2019 Act, so thc oflcndcrs bookcd undcr thc Act must bc combated with judicial rcsponsc and no bcncfit on account ofsuch incfficicncy on thc part ol law cnlorccnrcnt agcncy can bc cxtcndcd to thcm, morc parricularly, whcn thc factum of rccovcry and safc custody is ovcrwhclmingly provcd as is thc casc bcforc us. 'l'hc submission o1'lcarncd counscl for thc appcllant, thus, mcrits no considcration and is discardcd as such. It is pc(incnt to mcntion that thc dcfcnsc could not bring on rccord that whal mala fide cithcr thc complainanl or thc invcstigating olficcr or cvcn any othcr policc ol'llcial had against thc accuscd appcllant to lalscly chargc him for commission of thc offcncc. lJvcn otherwise, clcmcnt of malaJide or falsc implication, that too, in a casc involving such a hugc quantity is out ol'thc qucstion, bccausc thc accuscd appcllant bclongs to f)istrict Khybcr, whcrcas, the rccovcry was cffcctcd from his direct posscssion in District Karak. 'l'hc appcllant has badly lailcd to cstablish to thc

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contrary thc vcry purpose of his prcscncc at the place of rccovcry

I l. Lcarncd counscl for thc appcllant rcfcrrcd to somc minor discrcpancics in thc statcments of thc witncsscs, but thc samc bcing trivial, cannot bc presscd into scrvicc to dislodgc the trustwonhy account furnishcd by thc prosccution witncsscs on onc hand, and thc inhcrent worth of thc collected material, on thc othcr. It cannot bc ignorcd that thc witncsses tastcd thc tcst ol' cross cxamination aftcr a considcrablc pcriod of thc datc of rccovcry, so thc minor contradictions with rcgard to the timings, or thc cxacl numbcr ol' policc officials, who r rU\

accompanicd thc colnplainanl or thc invcstigating officcr, as thc casc may bc, wcrc bound to occur, bccausc it cannot bc dcnied that policc officials conduct the likc procccdings on day to day basis and as such, it would bc unnatural to cxpcct them to disclosc in cach and every such case with exactitude the timings or thc numbcr ol'olficials accompanying thc complainant or the invcstigating olllccr'. Ilcsidcs, undcr thc criminal administration ol justicc, minor contradictions or discrcpancics, which do not go dccp to thc roots ol a particular casc, cannot bc madc solc ground for acquittal, morc particularly, when guilt ol'accuscd pcrson is othcrwisc cstablished on record.'l'hc reason bchind is that if such irrclcvant contradictions or discrcpancics is givcn much importancc and arc takcn into considcration solc ground,

thcn thcrc would bc hardly any conviction in criminal cascs, which has nevcr bccn the intcnt and purposc bchind apprcciation ol cvidcncc undcr thc criminal administration of justicc.'l'hc Apcx Cou( in thc casc of "Shamsher Ahmad and another Vs The Stale and olhers" 022 SCMR I93I has hcld that:

'While appreciating the evidence, the courl must not attdch undue impotlance to minor discrepancies and such minor tliscrepancies which do not shake the salient features of the prosecution case shoultl be ignored. The accused connot claim Premium of such minor discrepancies' If importance be given to

then such insignificanl inconsistencies there woultl hardly he any conviclion"' has bccn statcd abovc

12.'l'hc cumulativc cltbct of what has but to hold that thc prosccution loads this Court nowhcrc'

homc guilt against the appellant' lully succccdcd in bringing apprcciatcd and thc 'l'hc cvidcncc on filc has propcrly bccn thc circumstanccs' was right to convict lcarncd trial Court, in to lor thc appcllant has failed thc appcllant' l 'carncd counsel or irregularity' or misrcading or non- point out any illcgality piccc ol cvidcncc in thc impugncd rcading of any matcrial

judgmcnt, rather thc rccord speaks otherwisc and thc rcasons givcn by thc lcarncd trial judgc find complctc support from lccord ol' thc casc, as such, no intcrl-crcncc is callcd [or.

Conscqucntly, thc instant criminal appcal bcing bcrclt of any rncrit is hcrebv dismisscd.

Announced

((ihafoor Zaman)

Date of writins of iudement:

41h of April, 2023

JUDGE

JU

(D.B)

Hon'ble Mr. tustice Sdhibzodo Atodulloh Hon'ble ML lustice Shohid Khon

i irat

I

0 7 APR 2023

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