Ghulam Jan Vs The State

Judgment Sheet

PESHAWA RHIGHCOURT. BANNUBENCH

(Judicial Department)

J.Cr.A No.109-B of 2022

Ghulbm Jan Vs The State

JUDGMENT

For Appellant: Mr. Sawal Nazir Khan Advocate For State: Sardar Muhamm:r d Asif, Asstt: A.G.

Date of hearing: 29.11.2022

SAHIBZADA ASADULLAH. J.--- Appellant Ghulam Jan was tried by the learned Additional Sessions Judge-III / Judge Special Court, District Baru:ru for thc offence under section 9(d) of Khyber Pakhtunkhwa Control of Narcotic Substances Act,2019 in case FIR No.l7 dated 19.03.2020 registered with Police Station Sub-Division Wazir, District Bannu and vide judgment dated 30.05.2022, the appellant was convictcd under section 9(d) ibid and sentenced to ri3orous imprisonment for life alongwith fine of Rs.5,00,000/- @upees Five Lac) or in default thereoi to undergo 06 months S.I. Benefit under section 382-8 Cr.P.C was extended to the appellant / convict. Being aggrieved, the appellant through the instant appeal has

questioned the legality of the impugned judgment and the awarded sentence.

2.The transient facts ending in filing of the instant criminal appeal are that on 19.03.2020, complainant Hafeez-ur-Rehman SHO (PW-02) alongwith police contingent was on patrol duty under the supervision of Sher Akbar Khan, Circle Officer, in the limits of Baran Dam, when at about l7:30, he received spy information regarding transportatio4 of huge quantity of narcotics through Mazda Truck bearing Registration No.W- 3l33/Peshawar, in response to which, he made barricade at Bannu - Miran Shah Road; meanwhile, at about 18:20 hours, the truck rushed there, which was stopped and its driver was deboarded. Upon query, the driver: disclosed hrs name as Ghulam Jan whose physical search went in vain, however, search of the truck led to recovery of 440 packets of Charas wrapped in yellow solution tape, from its secret cavities, beneath its floor. Al1 the 44 packets were weighed separately and the total quantity came out 55893; grams and from each of these packets, samples of 10 / l0 grams of Charas were separated for the purpose of chemical analysis at Forensic Science Laboratory, while the remaining quantity of 55453 grams was packed and sealed in parcel No.45. The truck alongwith charas were taken into possession vide recovery

memo EX.PC. The accused was accordingly arrested vide his arrest card of even date and murasila report Ex.PB was drafted and sent to the Police Station thrbugh constable Aziz-ur- Rehman No.76 for registration of the case, hence, the ibidFlR.

3.After completion of investigation, prosecution submitted complete challan, where at the commencement of trial, the prosecution produced and examined as many as 05 witnesses.

On close of prosecution evidence, lstatement of appellant / accused was recorded under section 342 Cr.P.C, wherein he professed innocence and false implication, however, neither he opted to be examined on oath as provided under section 340(2) Cr.P.C nor wished to produce defence evidence. After hearing arguments, the leamed trial Court vid,! the impugned judgment dated 30.05.2022, convicted and sentenced the appellant as mentioned above. Hence, the instant appeal against the judgment of conviction.

4.We have heard at length the learned counsel for the appellant as well as learned Assistant Advocate General representing the State and gone through the record, with their valuable assistance.

5.The appellant after having been booked in the instant case was arrested, the trial commenced and on conclusion of the trial, the learned trial court was pleaseJ to convict him vide the

impugned judgment for the offence charged. The leamed trial court applied its judicial mind to the collected evidence on file and after assessing the recorded staten\ents before it, passed the impugned judgment. This Court is to see as to whether the learned trial court appreciated the evidence on file and as to whether the impugned judgment is the outcome of application of judicial mind, to the facts and circumstances of the case.

There is no denial of the fact that undet the Act, for commission ofthe offence, stringent punishment is provided and that when the punishment is severe then the prosecution is equally burdened with the liability to prove the charges against the accused to the hilt. In the present case, the prosecution examined as many as 05 witnesses and to ascertain as to whether the leamed trial judge was justified to convict the appellant, we feel it essential to revisit and re-appreciate the evidence, once appreciated, so that miscarriage ofjustice could be avoided.

6.It was on 19.03.2020 that c:n spy information, the complainant alongwith police offrcials made barricade at the place of incident and after some time, the truck in question approached to the spot, which was signaled to stop and the driver was deboarded therefrom. The truck was searched, which led to the recovery of 44 packets cf charas from its secret

cavities. The accused was arrested and copy of murasila was sent to the Police Station, which was incorporated in the present F.I.R. The Investigating Officer v!sited the spot and on pointation of the complainant, prepared the site plan. After completion of the proceedings on the spot, the case property was handed over by the complainant to the Investigating Officer.

7.In support of its claim, the pr5secution, among others, examined the complainant as PW-02, who stated that on the day of incident, while on patrol duty, he received information from an informer that a Mazda Truck bearing Registration No.W3l33/Peshawar is trafficking huge quantity of narcotics;

that after receiving the information, [e made barricade on the spot and waited for arrival of the vehicle; when the vehicle reached to the spot, it was signaled to stop, which was accordingly stopped; the driver upon query disclosed his name as Ghulam Jan; on search of the vehicle, 44 packets of Charas constituting a quantity of 55893 granls in toto were recovered from its secret cavities. This witness was cross-examined by the defense, but nothing detrimental to the prosecution case could be extracted from his mouth. The witress was examined regarding his arrival on the spot, the manner in which the vehicle was signaled to stop and the n-'ode of recovery from the

vehicle. In order to know as to whether the complainant was telling the whole truth and as to whether the incident occurred in the mode, mErnner and the stated tirLe, we feel it essential to go through the statement of Aziz-ur-Rahman No.76 (PW-04), who accompanied the complainant fiom the Police Station to the spot and that in his presence, the recoveries were effected from the vehicle. This witness was cross-examined on material aspects of the case, but he remaine,'l consistent to what the complainant stated. The manner in which the complainant left the Police Station is fully supported by the marginal witness and even the manner in which the recoveries were effected from the vehicle.

8.The investigating officer was etamined as PW-05, who, inter alia, stated that on receiving copy of the F.LR, he visited the spot; that on reaching to the spot, he was handed over by the complainant sealed parcels No. I to 44 each containing l0 grams charas for the purpose of chemical analysis by the Forensic Science Laboratory and l,arcel No.45 containing 55453 grams ofcharas recovered from the accused / appellant;

that he took into possession the same alongwith the truck vide recovery memo ExPW-5/l duly attested by marginal witnesses;

that he prepared site plan at the instance of the complainant and the statements of the witnesses' were recorded. The

investigating officer was cross examined on material aspects of the case, but nothing detrimental could be brought on record to shatter the prosecution case. Muharrir of the police station was examined as PW-01 or 29.09.2020 followed by his re- examination as RPW-01 on 15.01.2022. The witness categorically stated that it was he who incorporated the contents of murasila into FIR Ex:PW-l/l after receiving the murasila from SHO Hafeez-ur-Rehman through constable Aziz-ur- Rehman No.76; that he thereafter hanJed over copy of the FIR to BBI staff for investigation and that on arrival of investigating officer to the police station after completion of investigation, he was handed over by the investigating officer parcels No.l to 44 each containing l0 grams of Charas and parcel No.45 containing 55453 grams of charas alongwith application for transmitting the parcels to Forensic Science Laboratory for chemical analysis which he kept in safe custody of the Malkhana; that he handed over the sample parcels, 44 in number, alongwith application and route certificate No.2ll21 to constable Nabiullah No.27lLHC for, taking the same to the laboratory which he did and on returri, he was handed over by him receipts / route certificate. Similarly, constable Nabiullah No.27 was examined as PW-03, who stated that it was on 24.03.2020, when the Muhanir of the PS handed him over 44

sample parcels each containing l0 / l0 grams of Charas alongwith route certificate; that he took the same to the forensic sclence laboratory, where he handed it over to the office concerned and brought the receipts back to the PS, which he handed over to the Muhanir. Both these witnesses were subjected to lengthy cross examination, but they remained in harmony with each other as far as th: date, time and mode & manner of transmission and handing over of the parcels are concerned and nothing detrimental could be brought out from their mouth. It is pertinent to mention that in the like cases, it is for the prosecution to prove on record the safe custody of the recovered substances, as right fiom it ; recovery till its sending to the Police Station, is established on record and that both the witresses i.e. PW-01 and PW-03 were examined for this particular purpose, but no inconsistency could be found within their statements. Not only the prosecution succeeded in proving the safe custody ofthe contraband in t]re Police Station, but also PW-03, who took the test samples to the office of the Chemical Examiner explained the minute details of his departure to the offrce of the Chemical Examiner. It was contended with vehemence that the sample parcels were dispatched to the forensic science laboratory beyond 7i hours of its seizure and as such, Rule-4 of the Control of Narcotic

Substances (Govemment Analysts) Rules, 2001 has been blatantly violated, which, in tum, not only overshadows its safe custody, but also impairs and vitiates the conclusions and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This limb of the arguments of leamed counsel for the appellant has no force, as on one hand, the Muharrir (PW-01) while recording his statement has plausibly explained the delay to the effect that he received the sample parcels afterhe investigating officer arrived at the Police Station and that there were holidays on 2f ,22"d and 23'd of March, 2020, so he handed over the same to PW-03, on24.03.2020, whereas, on the other, the said Rules are directory in nature and not mandatory and any lapse in compliance thereof does not automatically discard the whole prosecution case, particularly when safe custody is otherwise proved as in the instant case. In this regard, reliance could be placed on 2022 SCMR 1097 "Liaouat Ali and another Vs The Statglwherein the Apex Court has held that:

So far as the argume,rt of the learned counsel for the pet,lioner that lhe conlraband charas, ils safe custody and sofe transmission is nol eslablished is concerned, the learned High Courl has very ably dealt with this issue in paragraphs 18 and 19 of lhe impugned

judgment while holding that the Control of Narcotic Substantes (Government Analysls) Rules, 2001 virtually place no bar on the Investigating Officer to send the samples beyond 72 hours of the seizure, These Rules are slricto sensu directory and not mandatory in ony monner. It does not spell out that if there is any lapse and the iime is consumed beyond 72 hours, il wdutd automalically become instrumental to discard the prosecution case in all manners. The Control of Narcotic Subslances (Government Analysts) Rules, 2001, cannot control the substantive provisions of the Conlrol of Na?cotic Subslances Act, 1997. These Rules cannot in any manner frustrote the salienl feotures of the prosecution case which otherwise hinges upon (i) receipl of informalion, (ii) action by lhe concerned law enforcing agency, (iii) recovery. of conlraband narcotics, (iv) the report of chemical examiner regarding analysis of the recovered conlraband, (v) the finding of fact by the courts below after recording of evidence Le. (a) wilnesses of the raiding parly, (b) lhe recovery witnesses, (c) Invesligating OfJicer .and all other attending circumslances. If the series of octs which ultimately resulted into

recovery of contraband narcotic are juxtaposed with lhe viol{ttion of the Rules due to one reason or the other as alleged, it cannot by any stretch of imagination be considered reasonable in law to smash the prosecution cose on its salienl features.

The lransporlation of drugs either inside the country or sending il abroad has become a menoce cgainst morality, decency, public order, law and order sitaation which indirectly intrades upon the sovereignly of lhe courrtry. If this praclice is allowed to continue it will squarely hamper the very purpose of the law on the subjecl and woultl squorely bring bad name for il,e country in the eyes of internalional community,"

9.All the witnesses have narrated the episode lna straightforward manner and remained consistent as far as mode & manner in which the vehicle was stopped, process of search and seizure that was carried out, weighment of contraband and separation of samples from each packet coupled with its sealing, arrival of investigating officer to the spot and the proceedings he conducted. Similarly, it has also been established that the parcels on arrival ofinvestigating ofhcer to the spot were handed over to the Muhrrrir of the police station, who kept the same in safe custody of Malkhana and thereafter,

handed the same over to PW-03, who took the same to the forensic science laboratory and on return, handed over receipts and route certificate to the Muharrir (PW-01). In this view of the matter, we lurk no doubt in mind that the prosecution has fully succeeded in proving not only the recovery, but also the safe custody of the recovered contraband and its transmission to the Forensic Science Laboratory, where the report Ex.PK was received in positive and as such, it has further strengthened the case of the prosecution.

10.Learned counsel for the appellant referred to some minor discrepancies in the statements of thp witnesses, but they are not of such a nature, which can be pressed into service, to dislodge the trustworthy eye witness account of the witnesses on one hand and the inherent worth of the collected material, on the other. The defense could not bring on record that what mala fide either the complainant or the investigating oftrcer or even any other police official had against the appellant to charge him for commission of the offence and to plant such a huge quantity of narcotics against him. We cannot ignore that the recovery was effected way back it 2020, whereas, the witnesses faced the test of cross examination after an:extensive length of time, in202l, so the minor contradictions with regard to the timings as to when the information was received, when the

investigating offrcer reached to the spot and when they left the same were bound to occur, as the police officials were and are conducting the like proceedings on day to day basis and it would be unnatural to expect them to answer with exactitude the timings, without any difference as to minutes. Even minor contradictions with regard to timings suggest that the police officials were having no animosity with the accused charged or interest in his prosecution with mala fide, as had it been so, the minor contradictions of timings would not have happened, rather the witnesses would have enabled themselves to reply with exactitude as we experience in s,:me other criminal cases.

The Apex Court in the case of '(Shamsher Ahmad and another Vs The State and otherc!(2022 SCMR 1931)has held that:

"l{hile appreciating the evidence, lhe court must nol attach undue importance

to minor discrepancies,and such minor

discrepancies which do not shake the

salienl features of the proseculion case

should be ignored. The occused cannot

claim premium of such minor discrepancies. If imporlance be given to

such insigniJicanl inconsislencies then

lhere would hardly be any conviction."

11.As at the time of arrest, it was the appellant who was driving the vehicle and that no other person was present therein, so no ambiguity is left to hold that the appellant was in full control ofthe vehicle and that he had the conscious knowledge and possession of the recovered substance, more particularly, when the same was recovered from its secret cavities. It is also evident from the record that right from the day first till conclusion ofthe trial, none could appear to claim ownership of the vehicle, which aspect further confirms our belief that the vehicle was possessed at the crucial time by no other person, but the appellant and it was he who was attempting to transport the contraband after concealing the same in its secret cavities.

The Apex Court in case titled "Kashif Amir Vs the State" @LD 2010 Swreme Court 1052) was pleased to hold that:

uFurlher, when a person is driving lhe

vehicle, he is Incharge of the same and it

would be under his control ond possession, hence, whatever articles lying

in il would be under his conlrol and possession. Reference in this behalf may

be made to the case of Muhammad Noor

v. The State (2010 SCMR 927). Similarly,

in the case of Nadir Khan v. State (1988

SCMR 1899) this court has observed that knowledge and qh)areness would be atlributed to the Incharge ofthe vehicle."

12.In another case, reported as aa Karam Hussain Shah

and olhers Vs The State and others" (2019 MLD 144il. it was held that:

"..,in this case the conlraband was conceoled in front doors of the vehicle, lherefore, onus is upon the appellants to prove in terms of Article 122 of the Qanan-e-Shahadil Order, 1984 as to how the contraband was concealed in the car and as such, the appellants have not explained the circumstances. At last, lhe Apex Court has also laid down heavy burden of proof upon the driver of vehicle, against whom lhe proseculion has discharged its onus and lhe driver of the vehicle is lo be declored responsible percon for lransportalion of narcotics as no condition or qualifications are made in Section 9(c) of CNSA, 1997.'

13.We may observe that the r.nenace of narcotics is increasing day by day and more and more young people are becoming addicted to narcotics these days. It is more alarming that even children are known addicts and the prevalence ofthis harmful addiction knows no boundaries and ultimately, the youngsters are bound to lose their health and will suffer from chronic diseases in the years to come, if they are not salvaged.

Keeping in mind the consequences of the increasing tendency of the menace of narcotics, the legislative strictness in the form of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 was brought about in the province, so the offenders must be combated strictly in accordance with the intent and purpose of the Legislature.

14.Turning to the quantum of sentence being awarded to the appellant, it has been established on the record that he was arrested red handed while traffrcking,,huge quantity of Charas weighing 55893 grams, which has crossed the threshold provided in proviso to section 9(d) CNSA. Clause (d) of section 9 CNSA and the proviso thereto are reproduced hereunder for ready reference:

"(d) death, imprisonment for life or imprisonment for a term which may extend to fourteen years and with hne which may extend be up to rupees one million and not less than five lacs, if the quantity of narcotic substance

exceeds the limits of one kilogram:

Provided that if the quantity exceeds ten kilograms, the punishment shall not be less than imprisonment for life in any case."

15.As the prosecution has successfully proved the charges against appellant, so keeping in view the mandate of section 9(d) CNSA, the leamed trial court has rightly awarded him life imprisonment.

16.The cumulative effect of what has been stated above leads this Court nowhere, but to hold that the prosecution has fully succeeded in bringing home the guilt against the appellant and that the impugned judgment suffers from no illegality or irregularity which calls for no interference. The instant criminal appeal being bereft of merit is hereby dismissed.

Announced

(Ghafoor Zamanlsteno)

Signed on:

12.01.202f

J DGE

vde r, (o.8) Hon'bte Mr. lusti.e sohibzoda Asodulloh Hon'bh Mr. tustice Muhomrnod Foheem woll

l6JAN 3

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